Anyone seen Magic Mike… or more recently Magic Mike XL? Maybe it’s just the woman in me, but I would say those moves are pretty creative! Apparently, District Judge Thomas W. Thrash Jr., doesn’t share my same enthusiasm for the arts. Haha!  So…is Magic Mike exempt…or not?

[tweetthis]Magic Mike: Exempt or Not? Depends on your definition of Creative Professional…[/tweetthis]

Currently under the Fair Labor Standards Act, a class of employees known as Creative Professionals are exempt from overtime and other protections.  The official description of a Creative Professional:

To qualify as a “creative professional,” an employee must be (i) compensated on a salary basis or fee basis at a rate of not less than $455 per week; and (ii) his or her primary duty must be the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.

Hard to believe, but there has been more than one ruling on classifying exotic dancers as creative professionals! So let’s break these cases down.  The most recent ruling, referred to above, Henderson v. 1400 Northside Drive, Inc.
began when a group of male exotic dancers sued the owners of the nightclub in which they performed because they believed they were entitled to minimum wage and incorrectly classified as Independent Contractors. The club owners disagreed and argued that they were Creative Professionals.

During the case, the GM of the nightclub testified that “most of the dancers do not ‘know how to actually dance,’ and that ‘knowing how to dance is not necessary to perform the job.[18] He even went so far as to claim that many of these dancers were hired simply for their looks…. I could be wrong, but by that description, the GM doesn’t seem to show much appreciation for their invention, imagination, originality or (ahem) talents!

Another deciding factor in the case? The legal precedent from yet another case surrounding the same issue. In a virtually identical case in 1993, Harrell v. Diamond A Entertainment, Inc, the defendant again did present standards or criteria for the dancer’s “try out” or performance and the plaintiff didn’t have any prior dance experience.

So there you have it folks! Exotic Dancers…. Male or Female…. Should not be classified as Creative Professionals. I hand it to the business owners for their “creativity” with their interpretation of the exemption, but as expected, this
creativity didn’t hold up in court.