Yard Bird, Inc. v. Va. Emp.Comm'n, 28 Va.App. 215, 222-23 (1998); see also Porter-Blaine Corp., 27 Va.App. at 162.
These facts support the Board's determination that CPI exercised control over its dancers within the meaning of § 1-210(14)(a). See also Harrell v. Diamond A Entm't, Inc., 992 F.Supp. 1343 (M.D.Fla. 1997) (exotic dancers held employees under Fair Labor Standards Act minimum wage provisions even though dancers had no set work schedule, were remunerated solely by customer tips and provided own costumes; dancers worked on proprietor's premises and proprietor enforced licensing laws); Yard Bird, Inc. v. Virginia Employment Comm'n, 28 Va.App. 215, 503 S.E.2d 246 (1998) (exotic dancers held employees for purposes of state unemployment taxes notwithstanding "Independent Contractor Agreement" and fact that most of dancers' income was from customer tips, dancers scheduled own performances, worked at other establishments and were issued 1099s; proprietor had power to enforce regulatory laws, provided the facility and could terminate any dancer at will). ¶ 14 Even if CPI had proved a lack of control under § 1-210(14)(a), the business did not establish the dancers were "customarily engaged in an independently established trade, occupation, profession, or business" within the meaning of § 1-210(14)(b).
Accordingly, we reject the contention that we are, or should be, bound by the "safe haven" granted . . . by the IRS.Yard Bird, Inc. v. Virginia Employment Comm'n, 28 Va. App. 215 503 S.E.2d 246, 252 (1998) (quoting Virginia Employment Comm'nv. Peninsula Emergency Physicians, Inc., 4 Va. App. 621, 359 S.E.2d 552, 555 (1987)). Thus, we find no conflict between our state's broader coverage without a safe haven and the federal scheme with a safe haven.
Ct. Mass. 2011) ; Monteiro v. PJD Ent. of Worcester, Inc. , 29 Mass.L.Rptr. 203 (Super. Ct. Mass. 2011) ; Chaves v. RGIS Inventory Specialist , No. 07-2505, 2009 WL 3188948 (Super. Ct. Mass., July 30, 2009) ; Smith v. Tyad , 351 Mont. 12, 209 P.3d 228 (2009) ; Terry v. Sapphire Gentlemen's Club , 336 P.3d 951 (Nev. 2014) (adopting economic reality test); Club Paradise, Inc. v. Okla. Emp't Sec. Com'n , 213 P.3d 1157 (Ct. Civ. App. Okla. 2008) ; Oregon v. Bomareto Ent., Inc. , 153 Or.App. 183, 956 P.2d 254 (1998) ; Yard Bird, Inc. v. Va. Emp't Com'n , 28 Va.App. 215, 503 S.E.2d 246 (1998). 1. Nature and Degree of Control
See Quality Care Options v. Unemployment Comp. Rev. Bd., –––Pa. ––––, 57 A.3d 655, 660 (2012) (“[T]he [l]aw creates a presumption that an individual working for wages is an employee.”); Yard Bird, Inc. v. Virginia Emp't Comm'n, 28 Va.App. 215, 503 S.E.2d 246, 249–50 (1988) (“[I]n borderline cases, ‘employment’ should be found to exist.... As defined in the Act, the term ‘employment’ should be accorded a broader and more inclusive meaning than in the common-law context of master and servant.... [Once satisfying] the initial burden of proving that the services are performed by individuals for remuneration ..., the burden shifts to the putative employer ... that it qualifies for an exemption....”); Sky King 101, LLC v. Thurmond, 314 Ga.App. 377, 724 S.E.2d 412, 413 (2012) (noting that Georgia's statutory code “provides that services performed by an individual for wages shall be deemed to be employment unless” the employer proves otherwise); E.P.M. v. Buckman, 300 S.W.3d 510, 513 (Mo.Ct.App.2009) (“Where a worker has received remuneration from an employer, there is a presumption of an employer-employee relationship, and to the extent it challenges that presumption, the burden of proof rests with the employer to show, under the common-law right to control te
Although I could not find any South Carolina appellate court cases that have addressed whether an exotic dancer is classified as an employee or independent contractor, other courts in various jurisdictions have analyzed the same or similar arrangements between exotic dancers and clubs and found an employment relationship existed. See Club Paradise, Inc. v. Oklahoma Emp't Sec. Comm'n, 213 P.3d 1157, 1161 (Okla.Civ.App.2008) (finding the exotic dancers were employees of Club Paradise based on the club's control over its dancers' performance, and noting the workers performed on the club's premises, the club could dismiss its workers at any time, and either party could terminate their relationship without liability); Yard Bird, Inc. v. Va. Emp't Comm'n, 28 Va.App. 215, 224–25, 503 S.E.2d 246 (1998) (finding exotic dancers were employees based on the amount of control the Yard Bird had over its dancers, and noting the club attempted to enforce its rule that dancers not leave the premises between sets, dancers could choose times they worked, but only in conformity with the club's schedule, and the club required dancers to comply with liquor control laws and regulations that governed its licensing status). While these jurisdictions do not apply an identical test to that utilized by the courts in South Carolina for determining whether an employment relationship exists, they are to some degree similar and consider the degree of control the alleged employer exerts over the worker.
Although I could not find any South Carolina appellate court cases that have addressed whether an exotic dancer is classified as an employee or independent contractor, other courts in various jurisdictions have analyzed the same or similar arrangements between exotic dancers and clubs and found an employment relationship existed. See Club Paradise, Inc. v. Oklahoma Emp't Sec. Comm'n, 213 P.3d 1157, 1161 (Okla. Civ. App. 2008) (finding the exotic dancers were employees of Club Paradise based on the club's control over its dancers' performance, and noting the workers performed on the club's premises, the club could dismiss its workers at any time, and either party could terminate their relationship without liability); Yard Bird, Inc. v. Va. Emp't Comm'n, 503 S.E.2d 246, 224-25 (Va. Ct. App. 1998) (finding exotic dancers were employees based on the amount of control the Yard Bird had over its dancers, and noting the club attempted to enforce its rule that dancers not leave the premises between sets, dancers could choose times they worked, but only in conformity with the club's schedule, and the club required dancers to comply with liquor control laws and regulations that governed its licensing status). While these jurisdictions do not apply an identical test to that utilized by the courts in South Carolina for determining whether an employment relationship exists, they are to some degree similar and consider the degree of control the alleged employer exerts over the worker.