LABOR AND EMPLOYMENT LESSONS FROM THE WORLD’S MOST COMBATIVE STRIPPER
Meet Brandi Campbell, a stripper and self-proclaimed labor activist for other strippers nationwide. She maintains stripperlaborrights.com, where she provides dancers with information about their legal rights, including their rights under the National Labor Relations Act. She’s filed (and won) unfair labor practice charges against clubs in Nevada, Minnesota, and Wisconsin, alleging that they discriminated/retaliated against her for engaging in statutorily protected activities and deprived dancers of their statutory rights by misclassifying them as independent contractors.
Her latest target is the Centerfold Club, in Columbus, Ohio. A few weeks into her stint leasing space as an independent contractor to perform at club, she started sending letters to club management complaining that the club was violating her and other dancers’ rights by misclassifying them as 1099 contractors instead of as employees. During that same time period, the club discovered Campbell’s website, and decided that it would likely be her next lawsuit target. Rather than wait around for that shoe to drop, the club terminated her lease after it discovered that she was touching customers in violation of Ohio’s “no-touching” law, which prohibits dancers from touching patrons while performing.
In Nolan Enterprises, Inc. d/b/a Centerfold Club, an NLRB administrative law judge concluded that the club violated Campbell’s section 7 rights by terminating her.
What lessons can we draw from this termination?
1. If it looks like discrimination, and smells like discrimination, then it’s probably discrimination.
According to the ALJ, there was “ample evidence of employer animus.” The club knew all about Campbell’s website and her prior Board charges and management discussed among themselves concern that was trying to set them up and planning to do to them the same as she had done to other clubs. To compound matters, the club admitted as much in its termination letter to Campbell.
You told people … that they could find “the Truth” about clubs and how to challenge the club on Dancers Stripper Labor Rights, your blog. We then found out your motives and read your web site that showed that your pattern and practice is to sue, destroy and lash out at people as I’m sure you will do to me and others when you read this letter. Please think before you act here. … We wish our lives to go our own directions and hopefully, not cross again. I know this is doubtful, since you invested time and effort to get a lawsuit out of something here for your blog, future newspaper articles or book.
If you tell someone you’re firing them for an illegal reason, then it’s probably the reason your firing them. A pretty easy call for the ALJ.
2. When trying to defend a termination, “show me” always trumps “tell me.”
The club had ample video of Campbell violating the no-touching law. What it did not have, however, was a documented track record of terminating other dancers for similar violations.
As its defense, Respondent contends that even if Campbell was engaged in statutorily protected activities, it still would have terminated her lease for violating Ohio’s no-touching law. … Based on my review of the evidence, I find Respondent falls well short of meeting its burden. … [C]onclusory testimony that other dancers were terminated for “illegal touching” does not satisfy Respondent’s burden, particularly considering all the evidence of animus that exists in this case.
In other words, show me, don’t tell me. It’s not enough to tell a judge or a jury that you don’t discriminate and treat all the same for the same misconduct. Without documentation to back it up, however, your explanation is likely worthless.
This post originally appeared on the Ohio Employer’s Law Blog, and was written by Jon Hyman, Partner, Meyers, Roman, Friedberg & Lewis. Jon can be reached at via email at firstname.lastname@example.org, via telephone at 216-831-0042, on LinkedIn, and on Twitter.