Destine Colvin v. Coconuts, CP# 2013-16306 (Division of Workers’ Compensation, decided July 31, 2015)

Using “control test” and “relative nature of the work test,” a dancer at a gentlemen’s club is determined to be an employee under the NJ Workers’ Compensation Act.

January 15, 2016

In finding that the petitioner was the respondent’s employee within the meaning of the Act, the Judge of Compensation relied on Pollack v. Pino’s Formal Wear & Tailoring, 253 N.J. Super. 397 (App. Div. 1992). The Judge of Compensation found that application of the “control test” required a finding that the petitioner was the respondent’s employee. Even though the petitioner set her own hours, she could not come and go as she pleased. Rather, she was expected to arrive timely and stay until her shift was completed. She was required to dance and to converse with patrons between dances. The respondent provided the dance floor, pole and couches on which the petitioner danced, as well as the DJ who arranged the music. As to the right of termination, the petitioner testified that after she was injured, she tried to return to work but was told by the respondent that she’d been fired. Although the Judge acknowledged that the petitioner’s lack of compensation was inconsistent with a finding of an employer-employee relationship, she determined that it was not dispositive of the issue. As to the “relative nature of the work test,” the Judge of Compensation found that the petitioner’s dancing was an integral part of the respondent’s business as a gentlemen’s club. Similarly, the petitioner was economically dependent on the respondent as her only source of income at the time of her injury.

_{Case Law Alerts}_{, 1st Quarter, January 2016}

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