Talk of raising the minimum wage has been all the buzz this year, with picketers marching in front of McDonald’s chanting “15 in 15,” as in dollars per hour this calendar year. But there is another minimum wage fight involving women like Sarah Brey. Ms. Brey is an author, English professor, yoga instructor, and exotic dancer.

Her first book, The Go-Go Professor, was a how-to-be-successful guide to what’s known as go-go dancing in New Jersey. It’s a pithy read offering good advice (learn to speak English, don’t chew gum, shower) for the mostly foreign woman who dance in places like Satin Dolls in Bergen County, New Jersey. The club was made famous as Bada-Bing! in The Sopranos, but in real life they don’t take off their clothes.

Ms. Brey’s second book has just appeared in Kindle and recounts her story of moving from New Jersey to Las Vegas. Dance rules changed when she left Jersey behind and the book is appropriately titled Top Down: My Experiences in Strip Clubs North to South & East to West.

I met the author her second day on the job in Las Vegas this past July. Brey is not only a renaissance woman with two masters degrees, she’s in a hurry (she could use a proofreader).  She mentioned the trip she had just made and I told her she should write a book. She said she was. Unlike most things dancers tell patrons, she wasn’t lying. A month later it was available. And sure enough that’s her on the cover.

Screen Shot 2015-08-27 at 11.46.14 AMWhat she may or may not know is that the Nevada Supreme Court has held that gentlemen’s clubs qualify as employers and performers (exotic dancers) qualify as employees using the economic realities test federal courts use under the federal Fair Labor Standards Act, making clubs obligated to pay minimum wage and overtime pay for hours worked beyond 40 a week.

Despite the court’s ruling on October 30, 2014 clubs seemed to have ignored Nevada’s high court.  In response, ex-dancer Corissa Jones, through her attorney, filed a lawsuit claiming “Defendants have not complied with federal law [by paying minimum wage and overtime pay] and have failed to maintain such records with respect to the Plaintiff and FLSA Class Members.”

Ms. Jones’s action combines all persons who worked for the Sapphire Gentlemen’s Club during the past three years, estimated to be more than 6,000 exotic dancers. She claims she was permitted to work as an exotic dancer at Sapphire in excess of 40 hours per week but was not paid minimum wage or overtime rates.

Coincidentally, the author, Ms. Brey, applied to work the night shift at Sapphire, but was turned down. She referred to the club as Diamonds in her book.  Brey, as readers learn, is a relationship dancer.  She has girl-next-door good looks and likes to win customers over with her intelligence and conversation. Being a yogi, she does amazing chin stands and pole tricks on stage.

But nights at big clubs like Sapphire are ruled by transactional dancers: Bronzed, platinum-haired beauties from Orange County with Kardashian-like curves who have no interest in conversation but bounce from customer to customer looking to rake in $20s doing impersonal lap dances.

In her court case filed last month, Jones states that like other exotic dancers, she was only compensated by the club’s patrons.  She was required to pay a house fee to the club to work and was required to relinquish some of her tips to the house mom, disc jockey, and club bouncers.

This was Ms. Brey’s experience in each club as she danced her way through South Carolina, Georgia, New Orleans, Tucson, and finally Vegas. In most cases she danced just one shift and left town. The clubs wanted a picture of her ID, a manager would take a look at her without a dress on, and she’d be hired on the spot.

House fees and what she had to tip out varied by club. The point is, she was the one doing the paying. After making “$400, $600, even $1000 on good nights,” in New Jersey, Brey managed to “be passing through towns, and pulling in $200/$300 on day shifts…” These were generally six hour shifts. So, doing the math, minimum wage wouldn’t seem to be an issue. Brey was more interested in finding the right yoga classes than working alot.

When she made it to Las Vegas, Brey learned city government sticks its hand in her G-string before any dancing happens. A Sheriff’s Card and Entertainer’s License must be obtained and an independent contractor agreement is signed with the club.

However, in the legal world, while all dancers sign such agreements, the fact that the performers at Sapphire agreed to be independent contractors was, in the court’s view, beside the point.

Bloomberg reported after the court’s decision last year,

The court acknowledged that “the temporary nature” of many performers’ working relationships with Sapphire weighs against employee status. But “this factor carries little persuasive value in the context of topless dancers and the clubs at which they perform and cannot alone tilt the scales in Sapphire’s favor,” the court said.

Sapphire argued that “exotic dancing” is “customarily performed” by independent contractors, but the court said scant legal or factual authority backs up that assertion. In any event, the dancers certainly are “integral” to Sapphire’s business, the court said.

In the court’s view, workers depend upon the existence of the business to work. In the case of performers at Sapphire, they were heavily monitored, and club management dictated their appearance, customer interaction, work schedules, and minute-to-minute actions while working. Also, the club provided the risk capital, advertising, and covered on-going operating expenses at the facility.

However, unlike most employees, dancers fiercely compete against each other. “The fear, every shift I work,” writes Brey, “that I have to make money, that I have to be good enough to compete with the other girls, that I have to be able to show skills enough to be worthy of being chosen to give money to, is a task I enjoy having to live up to in some way.”

So what are these dancing plaintiffs after? Are they claiming they were such unappealing dancers they didn’t manage to net minimum wage after paying the house and tipping numerous other employees? Not hardly.

Leon Greenberg, an attorney at the overtime wage and collection center in Vegas, says it’s a serious issue that people don’t take seriously given the nature of the plaintiff’s profession.

“They’re a hard demographic to represent,” he told Allie Conti of “The girls who are into it are making a lot of money, so it’s easy to say, ‘Oh, we’re getting $500 or $1,000 or a couple of thousand dollars for a day or night’s work.’ Even though these girls are taking a lot of abuse and not getting the legal protection they clearly deserve, they’re afraid to rock the boat.”

The dancers’ earnings evidently aren’t the issue.  The Nevada Supreme Court wants to punish the clubs, making them pay employees, no matter what the dancers take home. Conti writes,  “the six plaintiffs in the Sapphire suit took the risk, and they’ll now be making $8.25 an hour [Nevada’s minimum wage is higher than the Federal] on top of whatever cash they bring home, although the decision doesn’t say when that will go into effect.” (emphasis added)

Paying the $8.25 per hour is one thing. The record keeping is another.  No wonder the clubs aren’t jumping at the chance to pay. These records would include; a. The time of day and day of week on which the employees’ workweek begins; b. The regular hourly rate of pay for any workweek in which overtime compensation is due under section 7(a)of the FSLA; c. An explanation of the basis of pay by indicating the monetary amount paid on a per hour, per day, per week, or other basis; d. The amount and nature of each payment which, pursuant to section 7(e) of the FSLA, is excluded from the “regular rate”; e.The hours worked each workday and total hours worked each workweek; f. The total daily or weekly straight time earnings or wages due for hours worked during the workday or workweek, exclusive of premium overtime compensation; g. The total premium for overtime hours. This amount excludes the straight-time earnings for overtime hours recorded under this section; h. The total additions to or deductions from wages paid each pay period including employee purchase orders or wage assignments; i. The dates, amounts, and nature of the items which make up the total additions and deductions; j. The total wages paid each pay period; and, k. The date of payment and the pay period covered by payment.

One wonders if the plaintiffs thought it through. Money doesn’t seem to be the issue. “The consideration of these sex workers as employees is a huge step forward in giving them a voice within the context of where they work” ex-dancer Damienne says. For the attorneys my guess is it is very much a money issue as their cut of three years of back wages for 6,000 dancers would be considerable. And it being election season, we can hope Bernie Sanders or Hillary will gather the girls and march outside of Sapphire.

For Ms. Brey, the dancing and writing journey is therapeutic. She writes most dancers are in it “for financial reasons such as working their way through school, supporting their families, addictions, or livelihoods. I however, dance to grow, learn about myself, and heal childhood wounds.”

The plaintiffs seeking minimum wage on top of the thousands they make in cash should be careful what they wish for. While their attorneys grab a big piece of any eventual settlement and then look for the next ambulance to chase, the increases in paperwork and losses of freedom and work flexibility will make dancers wish they had left well enough alone.