Two lawyers debate workers' classification

CARSON CITY, Nevada -- A Girls of Glitter Gulch lawyer told the Supreme Court on Friday that Las Vegas exotic dancers do not want to be hired as formal employees of the clubs where they work.

Instead, the strip tease dancers prefer the current arrangement where they are independent contractors and make their living through tips, according to lawyer Mario Lovato.

He asked the court to reject an appeal from Tucson lawyer Mick Rusing, who argued that strip tease dancers must be hired as employees and paid at least a portion of the minimum wage and still receive tips.

The court is not expected to make a decision for several months. During the half-hour hearing Friday, justices did not give any indication of their leanings.

Rusing wants the court to rule strippers are a class that he can represent as a whole instead of requiring him to file cases on behalf of individual dancers. That way he hopes eventually to secure a court decision on behalf of what he estimates are 10,000 exotic dancers in Las Vegas.

But if strippers were employees who received wages and benefits, Lovato said, the clubs then would be required by law to keep track of their tips.

Under the current arrangement, they work as independent contractors and take home tips every night without telling the clubs how much they received.

"They don't want to pay taxes, is that what you are saying?" Justice Mark Gibbons asked.

Lovato did not directly answer his question.

"They are working for the tips they want to take home," he responded. "No dancer wants to be part of this case. They are taking home hundreds of dollars in tips a night."

Rusing appealed to the Supreme Court a decision by then-District Judge Nancy Saitta. She threw out the case he filed on behalf of "Jane Does." Saitta is now a Supreme Court justice and did not participate in the Friday hearing.

Saitta ruled Rusing did not find an adequate representative to bring a lawsuit against Glitter Gulch.

During Friday's hearing, Lovato said the stripper that Rusing wanted to use in district court to prove his case also worked as a legal secretary for the son of former Justice Cliff Young.

She clearly knew what she was doing when she signed a five-page agreement with Glitter Gulch in which she was deemed an independent contractor and not an employee of the club, he added. Under the agreement, she received no salary and was free to work the hours she wanted.

Lovato said she filed a federal tax return in which she identified her stripping career as a business. She claimed the clothes she purchased and visits to the beauty parlor as business expenses.

He added that Rusing has been looking for five years for strippers willing to bring cases against Glitter Gulch and other strip clubs but he cannot find any.

Rusing had even acknowledged at the district court hearing that he did not have an adequate representative to bring a case against Glitter Gulch, according to Lovato. But Rusing denied making the comment.

If the Supreme Court agrees he can bring a class action lawsuit on behalf of strippers, then Rusing said he can prove the law requires them to be hired as formal employees of the clubs.

Similar cases have been argued across the country and judges have ruled strip club dancers must be considered employees, he added.

Under the current situation, Rusing said, strip clubs pay dancers nothing and request the dancers pay them to work.

Even if employees receive most of their money from tips, federal law requires employers to pay them a portion of the minimum wage, he added.

"There is no question the (state minimum wage law) applies here," Rusing said.