It's six o'clock of a Wednesday evening. I'm making my way up O'Farrell Street toward the Great American Music Hall, note pad and tape recorder in hand, to cover what's been billed as an "interview and photo opportunity, cocktail party/fund raiser" for a group of dancers from the Mitchell Brothers' O'Farrell Theatre calling themselves "Save Our Strippers." I'm not sure whether to expect news or theatre, substance or titillation, insight or babble. I try to drop all expectations and preconceptions and walk in as a Zen novice, clear and open.
"This fund-raiser," states a press release from Benton and Associates, the Mitchell Brothers' publicists, "marks the opening thrust by these dancers to politically organize" their opposition to a class action lawsuit against the theatre, filed by Ellen Vickery and Jennifer Bryce in March. You may have seen coverage of that action, as it made the local papers and news. Vickery and Bryce are suing to have dancers at the O'Farrell Theatre classified employees rather than independent contractors, and to claim up to $5 million in back pay for some 300 women who have worked at the O'Farrell since dancers were taken off salary in 1988.
Now, it seems, some 140 of the 170-200 dancers who currently work at the theatre have banded together with San Francisco attorney Richard Idell in an attempt to retain their independent contractor status. Why would a group of people put serious time, money, and energy into fighting for their right not to be paid a salary (in addition to tips), not to have social security benefits, not to be eligible for disability benefits and for unemployment compensation if they lose their jobs? This is my chance to find out.
Outside the Music Hall, a picket line of some 30 people circles on the sidewalk, chanting loudly with the aid of a bullhorn. "Mitchell Brothers, you're no good; pay your workers like you should," they chorus. After a while they switch to "Are you ready to fight? Damn Right!" and then to the more elaborate Chant #5:
You strip us of our paychecks,
You strip us of our rights,
But strippers won't be beaten,
Be ready for a fight!
From inside the doors of the Music Hall, several of the SOS dancers --
classically gorgeous in evening dresses, heels, and perfect makeup -- peer out at the protesters rather bewilderedly.
"Who are these people?" one asks.
"They're all men," says another, not quite accurately, though most of the picketers are, in fact, male.
"It's all the strippers that have been fired," someone else comments.
"They're just complaining because they're too ugly to strip," another chimes in.
As the media reporters and camera crews (plus a smiling Scarlot Harlot) rush to film the protest, a dancer who gives her name as Rochelle complains that the demonstrators are stealing center stage. "Of course the most radical can get the most attention," she frowns, "but there's something to be said inside here." Inez, another SOS'er, is equally displeased. "It's a little too crazy for something that's supposed to be peaceful," she says.
Of Grown Women and Daddy Jim
Eventually the medioids enter the hall, set up their rigs, and the press conference begins. Against a visually pleasing semicircular array of 19 dancers, attorney Idell sets a very quiet, impeccably reasonable tone.
"My client group," Idell explains, "are independent contractors, like being independent contractors, do not view themselves as assembly line workers who should be designated as employees. They feel that the status they have is economically more beneficial to them because it gives them greater freedom over their own destiny."
In response to positively perplexed questions from the press, the SOS spokeswomen follow Idell's introduction by explicating why they don't want salaries, don't want health care benefits for themselves and their children, don't want disability and workers' comp.
"If we were to become employees," says Vienna, "a lot of us would be out of a job. Financially, I don't believe [the theatre is] going to be able to employ us all and have as work as much as we want."
"Because of the economic advantages to being an independent contractor," argues impressively articulate Dana Brown, "I am much better off as an independent contractor who provides her own medical benefits. I like it that way. I prefer that. I come out ahead."
What emerges from the give and take is that these women feel that, in addition to possibly losing their jobs, they stand to lose a lot of their freedom and independence if they become salaried employees. At present, they claim, they work whatever hours they want, whatever shows they want, five days a week or two days a month, as diligently or lazily as they want when they're on the job. If they want to stay in the dressing room and talk on the phone to their boyfriends, they say, no one bothers them.
"If I were an employee," says one dancer, "they'd have every right to say 'Go downstairs [to sit with customers].' I do not want this to happen. What if I want to do my homework? What if I have a test?" The other dancers burst out in triumphant applause.
"We request our own schedules," says Inez, another dancer. "90%, 100%, of the time we get what we want."
"It's very nice," adds Cheri, "they're not mean to us."
"I've been in Mitchell Brothers for so many years," says Gabrielle. "Nobody ever told me what to do. I own a large clothing store in San Francisco thanks to the Mitchell Brothers. Thank God for Mitchell Brothers once again. If it wouldn't have been for Jim Mitchell, I'd probably never have finished school and I would never have a business."
The praise grows so effusive that I start to get a little dizzy. I've heard people say that Jim Mitchell is a better boss -- or contractee -- than the people who run other strip theatres, here and elsewhere, but I've never gotten any sense that he should be nominated Feminist Employer of the Year.
"So you're saying that essentially the dancers run the business and management gives you everything you want," I probe sarcastically.
"That's right," Gabrielle answers, dead serious. Tasha, at her side, takes it one step further.
"We really like it," she says. "We can't get enough of it. We can't get enough of our daddy, Jim Mitchell, and I hope you got that part on tape."
What's an organizer to do? As Tasha puts it, "This is the 90s; I want freedom." To hell with retirement benefits and job security. Who cares? Niffer says "it would be really humiliating for any of us to stay as dancers when we're over 30 years old" anyway.
Is it a restriction of dancers' freedom and adulthood to be told they can't go in and out of the theatre during their shifts? someone asks. "Going in and out is a safety issue," we're told, a demonstration of management's concern for dancers' welfare in a bad neighborhood.
Tasha says, "We can't get enough of our daddy, Jim Mitchell." Dana says, "We're grown women," angrily rejecting allegations that dancers were pressured or coerced into supporting the SOS event.
Thoughts of a Skeptical Laborite
While this isn't exactly union organizing (although the Service Employees International Union is ready to represent the dancers if they are classified employees), the issues and arguments are remarkably familiar to this third generation laborite and red diaper baby. When workers start to get together, the first thing management does is claim they'll have to close the plant or lay off half the workforce if they have to pay union wages. That's what John D. Rockefeller said to the United Mine Workers in the 30s (before machine gunning them in Ludlow, Colorado); that's what the corporate growers said to Ce'sar Chavez when he began organizing the United Farm Workers Union in the 60s; that's what Jim Mitchell is saying to his dancers in 1994. And they seem to believe him.
But would the O'Farrell Theatre employ fewer dancers on salary than it does now? Vienna says the theatre just couldn't afford the additional cost. Several dancers note that when dancers were salaried employees, they also had to work regular hours and be bound by tighter work schedules. But at that time (before 1988) there were only 30 or 40 dancers employed at the theatre; now there are close to 200. There has been a veritable explosion of women interested in working as lap dancers, and the theatres have the strong motivation to attract customers by offering a continuously changing array of as many different faces and bodies as possible. Cutting down the number of dancers at the theatre would seriously hurt the theatre's appeal to its customers. It's no accident that advertising for the O'Farrell Theatre long boasted that they had more dancers than any other place in town.
Thirty dancers per shift at $4.25/hour minimum wage comes to about $1650 a day in wages. If 500 customers a day pass through the theatre, the wage expense comes to about three bucks a head, more than covered by the recent $5 boost in the ticket price at the door. Of course the $10 per dancer per shift stage fee (SOS calls it a "booking fee") that first prompted dancers to protest total management control of their work situation would be history, but the theatre claims it doesn't get any of that fee anyway. (Carly: "It's always gone directly to the agent. We used to pay at the theatre; now we pay at his office a block away. We pay for this man to set all of our schedules.")
As for flexibility of schedule, leniency about dancer dressing room time, or creative control of stage performances, it remains unclear to me why any of these benefits are related to dancers being on the books as independent contractors. The theatre knows that the dancers want and need to be flexible about their schedules. They grant them this flexibility to get the best and the most dancers to work there. The same goes for the other working conditions (which, I have often been told by other dancers, are not nearly as idyllic as claimed by SOS).
It was after all, according to Jennifer Bryce, Jim Mitchell's demand that she do a "hardcore" show that prompted her to file her class action suit in the first place. Management judiciously describes its expectations of dancers as "guidelines," and Richard Idell asserted to the press that dancers "are not told how to dance. Nobody gets up there and choreographs it for them." If management has in fact told dancers they are to do a daisy chain with oral sex for the first song of a Green Door show, or dictated that the theme of a show will be "Orgy, Orgy, Orgy" as has been claimed by some dancers, these "guidelines" are more than casual suggestions to dancers on how they should perform their jobs.
Is SOS a grass roots response to the Vickery-Bryce suit, or is it really a management-inspired "company union" -- an attempt by management to substitute a company-friendly collective for one that threatens to be more hostile? The dancers who had the admirable courage to out themselves as strippers before Bay Area television audiences are clearly sincere and enthusiastic in their belief that they want to remain independent contractors. The SOS press release states accurately that, in response to the Vickery suit, SOS has retained attorney Idell to file a countersuit. But it doesn't make clear that the idea for this counteraction initially came from Idell (who was referred to the dancers by Mitchell Brothers attorney, Thomas Steele), rather than from the dancers. That SOS has been given use of the O'Farrell Theatre for meetings and allowed to post notices in the dressing rooms also suggests at least close cooperation between SOS and Jim Mitchell. So does SOS's use of Mitchell Brothers publicist Rita Benton.
One dynamic that seems to be significant in motivating dancer support for SOS is the resentment many of the women expressed that Vickery and Bryce had not consulted with them before filing their suit. As one dancer put it, "none of those women has ever spoken to me. I've worked there a long time, and then I pick up the newspaper and find out that they're representing me. If they really wanted to change things for the better, why didn't they collectively get all of the dancers together and say this is a problem, why don't we try and work together and change this?"
Vickery says the likelihood of her being able to organize the strippers before she filed suit was slim. She says she did talk with other dancers beforehand, and that the dancers she talked to were supportive of her, only to turn on their heels when she took legal action. She sees this change of heart as dancers simply being afraid of losing their jobs if they were to challenge the theatre openly. Some dancers, she says, have directly told her as much. Vickery, who still works at the theatre (Bryce was fired last June), also says that most dancers go out of their way to be accommodating and supportive of her when she's there.
Whether or not most dancers want to remain independent contractors, the issue of their legal status as workers is not up for a vote. Legally -- as Vickery points out, and as attorney Idell did his best to ignore -- the question is whether the circumstances of employment at the O'Farrell and other lap dancing theatres in San Francisco constitute an employeremployee relationship or a relationship between a customer and a contractor. That issue has to do with how much control the hiring firm has over its workers. Employers generally exercise substantial control over their employees, while contractors control the conditions and circumstances of their jobs.
This is the issue that Dawn Passar has brought before the San Francisco Labor Commission in a similar suit involving dancers at the Market Street Cinema. The Labor Commission has ruled that dancers at Market Street Cinema are employees, not contractors, a ruling that is being appealed in San Francisco Municipal Court by the owners of the theatre. When I asked Idell about the significance of the Labor Commission's ruling, he was evasive. "I don't know about the specific case that you're talking about," he claimed. "What the Labor Commissioner has done on a set of facts that I'm not aware of, I can't respond to."
According to Passar's Exotic Dancer's Alliance, workers are considered employees unless an employer can demonstrate that they are instead independent contractors. Information from the Alliance cites 20 "common law factors" used by the Internal Revenue Service to determine workers' legal status. A number of these factors seem to raise serious questions about classification of dancers as contractors, including these:
• Contractors are not required to follow, nor are they furnished with, instructions to accomplish a job.
• A company's success or continuation should not depend on the services of contractors.
• Contractors set their own work hours.
• Contractors should be able to perform their services without the hiring company's facilities.
• Contractors can't be fired so long as they produce a result which meets the contract specifications.
• Contractors usually have the right to hire others to do the actual work.
• Contractors usually do not have a continuing relationship with the hiring company.
• If contractors work on the premises of the hiring company, it is not under that company's direction or supervision.
The legal question is both complicated and detailed. Idell claims there are no fewer than 22 separate governmental agencies with conflicting criteria for determining worker status as employees or contractors. The Dancer's Alliance acknowledges at least six such agencies. Even if Vickery and Bryce win in court, they face the potentially awkward prospect if imposing their legal victory on more than a few co-workers who would like their work situation to remain unchanged.
The issue goes beyond the O'Farrell Theatre and beyond the local lap dancing scene. Strippers and lap dancers in other parts of the country are raising similar issues with regard to their work circumstances. Dancers in San Diego have begun to organize, and SF Weekly reports that suits similar to the Vickery action have been won by dancers in Texas, Alaska, and Florida. As the social stigma attached to stripping and lap dancing diminishes, new groups of women are attracted to the work -- attracted by its exoticism, its good pay, its rebelliousness, and its freedom. This new generation of strippers and dancers -- many of them students, artists, and feminists -- is going to change the face of the sex entertainment industry, one way or another. You can be sure that dancers and theatre operators across the country will be watching to see what happens in this case.
Spectator, July 22, 1994
Copyright © 1994 David Steinberg
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