United States District Court, E.D. Wisconsin
KRISTA PECOR, on behalf of herself and a class of employees or former employees similarly situated, Plaintiff,
NORTH POINT EDC INC., d/b/a North Point Exotic Dance Club, DAVID NICHOLS, and BILLIE JO RANSOM, Defendants.
DECISION AND ORDER DENYING MOTION FOR CONDITIONAL
William C. Griesbach, Chief Judge United States District
Krista Pecor, a dancer at North Point EDC, Inc., d/b/a North
Point Exotic Dance Club, located in Peshtigo, Wisconsin,
brought this putative collective action on behalf of herself
and other similarly situated employees against the Club, and
David Nichols and Billie Jo Ransom, its its owners/managers,
for violations of the Fair Labor Standards Act, 29 U.S.C.
§ 201 et seq. (FLSA). Pecor alleges that the defendants
misclassified her and other exotic dancers at North Point as
independent contractors and failed to pay them the statutory
minimum wage and overtime wages. Pecor also asserted claims
under the the Wisconsin wage law, Wis.Stat. § 109.01,
et seq., and for conversion and unjust enrichment.
case is before the court on Pecor's motion for (1)
conditional certification of a collective action pursuant to
29 U.S.C. § 216(b); (2) approval of a court-authorized
notice to be sent to all dancers who worked for the Club
during the three-year period prior to the filing of the
complaint; and (3) an order compelling the defendants to
provide a list of persons who danced at the Club within the
relevant time period. For the reasons that follow,
Plaintiff's motion for conditional class certification
and court-facilitated notice will be denied.
is the sole named plaintiff in this lawsuit, but two other
individuals consented to join as FLSA opt-ins shortly after
the lawsuit was filed, albeit with their last names redacted.
Together, the named and opt-in plaintiffs worked as exotic
dancers at North Point during the applicable statutory
period. According to Pecor, dancers at North Point are
required to (1) perform stage dances in view of the patrons,
(2) encourage patrons to purchase drinks, and (3) perform
“lap dances” for individual patrons. (Pecor Decl.
¶ 4, ECF No. 20.) Each dancer keeps all of the tips she
receives from the stage dances. (Nichols Decl. ¶ 7.)
Customers were charged $20 for lap dances, of which the Club
kept $10 and the dancer received the remaining $10, which
defendants call a bonus, if she performed at least four lap
dances during her shift. Otherwise she received nothing.
Dancers were also required to encourage customers to order
drinks and were paid a bonus of a dollar per drink sold if
they sold more than ten per shift. Otherwise, they again
received nothing for the drinks they sold. Each dancer also
paid a $10.00 “stage-fee” at the start of her
shift to cover miscellaneous expenses, including the cost of
playing her music on the juke box. (Id. ¶ 6;
Nichols Decl. ¶ 8, ECF No. 23-1.)
claims North Point controlled what articles of clothing
dancers wore or removed, but cites as examples only that they
were required to wear high heels and remove their tops.
(Id. ¶ 15.) The Club sets the schedule for each
dancer based upon the dancer's availability and the
Club's needs for any given week. (Id. ¶ 9.)
The schedule is set a week early and the Club keeps track of
the dancers who perform according to the schedule.
(Id. ¶¶ 11-12.) The typical shifts were
from 4:00 p.m. to 2:00 a.m. from Sunday through Wednesday,
and 4:00 p.m to 2:30 a.m. from Thursday through Saturday. The
bartender tracks the days the dancer worked, the time they
arrived, the drinks sold, and the dances and lap dances
performed and/or sold. (Id. ¶ 14.) Customers
purchase lap dances from the bartender, who gives the
customer a lap dance ticket to give directly to the dancer.
(Id. ¶ 16.)
worked as a dancer at North Point from Spring 2011 through
July 2016. (Pecor Decl. ¶ 2.) She alleges that North
Point classifies all dancers as independent contractors.
(Id. ¶ 16.) Pecor asserts that all dancers were
paid out each Saturday and that their pay could be withheld
or docked for the failure to meet the lap dance quota,
failure to meet the drink quota, or by leaving their shift
early or forgetting to sign out at the end of each shift.
(Id. ¶¶ 11-12, 14.) She claims she has
never been paid, or heard of anyone being paid, minimum wage
or overtime for their work at North Point, although she has
heard of dancers not being paid for a week's worth of
work. (Id. ¶ 18.)
the president of North Point and the corporate officer in
charge, does not dispute Pecor's account of her
experience, but states that each dancer has a different
arrangement. Several of the more experienced dancers who draw
a crowd receive a bonus just for appearing. Other
dancers' agreements vary according to their experience,
nature of their performance and daily bonus rates they
individually negotiate. (Nichols Decl. ¶ 5.) Each
dancer's compensation also varied based upon the amounts
they would receive from customers for lap dances, drinks and
tips. (Id. ¶ 6.)
also noted that about 10% to 15 % of the dancers who filled
out IRS W-9 forms in anticipation of dancing at the Club
either never dance at all or discontinue after one night.
(Id. ¶ 24.) A majority of the dancers have a
long-term working relationship with the Club but perform at
other clubs as well. The dancers typically work for two or
four weeks and then “go on the road” for weeks or
months so as to update their act, refresh their customer base
or take advantage of larger crowds that show up seasonally at
other locations. (Id. ¶ 25.)
FLSA permits collective actions “against any employer .
. . by any one or more employees for and on behalf of himself
or themselves and other employees similarly situated.”
29 U.S.C. § 216(b). At least for now, Defendants do not
challenge Pecor's characterization of herself and members
of the proposed class as “employees” within the
meaning of the FLSA. Contra Reich v. ABC/York-Estes
Corp., 64 F.3d 316, 322 (7th Cir. 1995) (“[A] core
issue in this case is whether the dancers are
‘employees' . . . If not (that is, if the dancers
are independent contractors), the [FLSA] does not
apply[.]”). Instead, Defendants argue that the Court
should deny conditional class certification because the
purported class of plaintiff dancers is not similarly
situated. The Court will thus address Pecor's motion on
a typical class action suit under Federal Rule of Civil
Procedure 23, where an unwilling plaintiff must “opt
out” of the class, the FLSA requires employees or
former employees to “opt in” to the class by
giving written consent to become a party to the collective
action. Woods v. N.Y. Life Ins. Co., 686 F.2d 578,
579-80 (7th Cir. 1982) (explaining differences between
collective action under the FLSA and class action
certification pursuant to Rule 23). District courts may, in
their discretion, implement this “opt in”
procedure by facilitating notice to potential plaintiffs to a
FLSA collective action. See Hoffmann-La Roche, Inc. v.
Sperling, 493 U.S. 165, 169 (1989); Woods, 686
F.2d at 580. “The critical inquiry in determining
whether a court should exercise its discretion to authorize
the sending of notice to potential plaintiffs is whether the
representative plaintiff has shown that she is similarly
situated to the potential class plaintiffs.” Austin
v. CUNA Mut. Ins. Soc., 232 F.R.D. 601, 605 (W.D. Wis.
2006). Generally, in order to determine whether the
representative plaintiff is “similarly situated”
to potential opt-in plaintiffs, this Court follows a two-step
certification approach. Adair v. Wisconsin Bell,
Inc., No. 08-CV-280, 2008 WL 4224360, at *8 (E.D. Wis.
Sept. 11, 2008).
the court examines whether the plaintiff has demonstrated a
“reasonable basis” for believing that she is
similarly situated to potential class members. Id.
at *3. At the first stage, the plaintiff must make “at
least a modest factual showing that such collective action is
appropriate.” Id. at *4. The plaintiff may
present factual support in the form of affidavits,
declarations, deposition testimony, or other documents in
order to demonstrate some “factual nexus between the
plaintiff and the proposed class or a common policy that
affects all the collective members.” Nehmelman v.
Penn Nat'l Gaming, Inc., 822 F.Supp.2d 745, 750
(N.D. Ill. 2011). At step two, usually on the defendant's
motion for decertification, the court must determine whether
plaintiffs who have opted in are, in fact, similarly
situated. Brabazon v. Aurora Health Care, Inc.,
10-CV-714, 2011 WL 1131097, at *2 (E.D. Wis. Mar. 28, 2011).
At the second stage, the court will assess whether continuing
as a collective action will provide efficient resolution in
one proceeding of common issues of law and fact.
Hoffmann-La Roche, 493 U.S. at 170.
the conditional certification at the first stage is a lenient
standard, it is not a “mere formality.”
Adair, 2008 WL 4224360, at *3. Because a
plaintiff's “discovery demands upon conditional
certification may impose a ‘tremendous financial burden
to the employer, '” courts must be careful to guard
against wasting the parties' time and resources where
certification is not appropriate at the outset.”
Id. at *4 (quoting Woods, 686 F.2d at 581).
For this reason, some courts require a showing not only that
similarly situated potential plaintiffs actually exist, but
that a substantial number likely have an interest in joining
the litigation. See Collins v. Barney's Barn,
Inc., No. 4:12CV00685, 2013 WL 1668984, * 2 (W.D. Ark.
April 17, 2013) (“Additionally, this Court agrees with
those courts that require evidence that other
similarly-situated individuals desire to opt into the
litigation.”); see also Dybach v. State of Fla.
Dept. of Corrections, 942 F.2d 1562, 1567-68 (11th Cir.
1991); Alvarez v. Sun Commodities, Inc., 2012 WL
2344577, *2 (S.D. Fla.2012); Johnson v. VCG Holding
Corp., 802 F.Supp.2d 227, 239 (D. Me. July 25, 2011);
McKnight v. D. Houston, Inc., 756 F.Supp.2d 794, 805
(S.D. Tex.2010); Salazar v. Agriprocessors, Inc.,
2008 WL 782803 (N.D. Iowa ...