Lewis v. L.B. Dynasty, Inc.

732 S.E.2d 662, 400 S.C. 129, 2012 WL 3828465, 2012 S.C. App. LEXIS 260
CourtCourt of Appeals of South Carolina
DecidedSeptember 5, 2012
DocketAppellate Case No.2010-165646; No. 5032
StatusPublished
Cited by3 cases

This text of 732 S.E.2d 662 (Lewis v. L.B. Dynasty, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. L.B. Dynasty, Inc., 732 S.E.2d 662, 400 S.C. 129, 2012 WL 3828465, 2012 S.C. App. LEXIS 260 (S.C. Ct. App. 2012).

Opinions

FEW, C.J.

LeAndra Lewis worked as a dancer in various “exotic dance clubs” throughout North and South Carolina. On June 23, 2008, she was shot while dancing at the Boom Boom Room Studio 54 on Two Notch Road in Columbia, South Carolina. The workers’ compensation commission held that she was not an employee of the club and therefore not entitled to benefits under the Workers’ Compensation Act. We agree.

I. Facts and Procedural History

Lewis was nineteen years old and living in Charlotte, North Carolina at the time of her injury. She danced three or four nights a week at a place called Club Nikki’s in Charlotte. On two or three other nights a week, Lewis travelled around the Carolinas to dance in other clubs. She typically earned between $250.00 and $350.00 a night in cash. When the single commissioner asked about her total income dancing “five to six nights a week, fifty weeks,”1 Lewis responded, “the money is actually addictive honestly, so you want to strive to get more, you know, so you work even harder.” Lewis worked several years in this business before she was shot, and she never filed a tax return.2 The clubs where Lewis worked are commonly referred to as strip clubs. Lewis’s role as a dancer in these clubs is what most people would call being a stripper.

The night Lewis was shot was the second or third night she danced at the Boom Boom Room. She had not danced there the night before, and she could not remember the previous [132]*132time or times she was there. Lewis presented several fellow exotic dancers as witnesses to explain that dancers often choose a city and a club to dance in on a particular night and travel there uninvited and unannounced. In keeping with this practice, Lewis showed up at the Boom Boom Room on this particular night, showed her identification to prove she was at least eighteen years old, and paid the required “tip-out” fee in cash to the club. She did not fill out an employment application and did not sign an employment agreement. The club gave her a “rules sheet,” she went to the dressing room to put on her outfit, and she danced.

At some point during the night, an altercation broke out in the club. There was gunfire, and a stray bullet hit Lewis in the abdomen. She suffered serious injuries to her intestines, liver, pancreas, kidney, and uterus. Surgeons removed one kidney, and doctors informed her she may never be able to have children due to the injuries to her uterus. According to her testimony, extensive scarring from the gunshot wound left her unemployable as an exotic dancer.

Lewis filed a claim for benefits with the workers’ compensation commission. Because the club had no insurance, the South Carolina Uninsured Employers’ Fund was forced to defend. Both the single commissioner and the appellate panel denied Lewis’s claim based on the finding that she was not an employee. Her appeal came directly to this court pursuant to section 42-17-60 of the South Carolina Code (Supp.2011).

II. The Independent Contractor/Employee Analysis

“[T]he determination of whether a claimant is an employee or independent contractor focuses on the issue of control, specifically whether the purported employer had the right to control the claimant in the performance of [her] work.” Wilkinson ex rel. Wilkinson v. Palmetto State Transp. Co., 382 S.C. 295, 299, 676 S.E.2d 700, 702 (2009). The test requires us to “examine[ ] four factors which serve as a means of analyzing the work relationship as a whole: (1) direct evidence of the right or exercise of control; (2) furnishing of equipment; (3) method of payment; [and] (4) right to fire.” Id. The question is a jurisdictional one as to which the appellate court “may take its own view of the preponderance [133]*133of the facts upon which jurisdiction is dependent.” Pikaart v. A & A Taxi, Inc., 393 S.C. 312, 317, 713 S.E.2d 267, 270 (2011). Applying the Wilkinson “control” test to the facts of this case, we find that Lewis was not an employee of the club.

Lewis claims that the club’s managers “controlled” her by searching her when she arrived that night, requiring her to pay the “tip-out” fee, and directing her to the manager’s office and then the dressing room. She argues in her brief the club’s control over her is demonstrated by these facts:

She danced when the club told her to dance; the club selected the music; the club set her hours; the club required her to perform on demand; the club required her to strive to get V.I.P. dances; the club set her tip-out and the floor rate for V.I.P. dances; and the club required her to bring drinks from the bar.

She argues that the club furnished equipment, such as the stage for dancing; poles to assist the dancers; private rooms for V.I.P. dances; tables, chairs, and couches for the customers; and even glasses in which the bartenders poured their drinks. In her brief, Lewis states, “The club provided the dancers with cleaning solution, towels, and a basket for collecting money while on stage, and the club provided the dancers with lockers for their belongings.”

Lewis discounts the method of payment factor on these facts since the club paid her nothing, but simply took a cut of her tips. As to the right to fire factor, Lewis argues the club’s right to “fine” her or refuse her readmission to dance at the club for violating club rules weighs in favor of an employment relationship.

We compliment Lewis’s counsel for this creative presentation, framing questions to the witnesses and presenting evidence to the commission in such a fashion as to create the appearance that the facts of this case fit the words of the Wilkinson test. However, we find that none of this supports the argument that Lewis met the test for an employment relationship under Wilkinson. Rather, the facts of this case demonstrate that Lewis was not an employee, and therefore that she is not entitled to workers’ compensation benefits.

We decide this appeal using the test articulated by the supreme court in Wilkinson. See Pikaart, 393 S.C. at 318-19, [134]*134713 S.E.2d at 270-71 (explaining that Wilkinson requires a court to “evaluate[ ] the four factors with equal force in both directions to provide an even-handed and balanced approach”); Paschal v. Price, 392 S.C. 128, 133-34, 708 S.E.2d 771, 773-74 (2011) (applying Wilkinson test). As Lewis’s counsel candidly acknowledged at oral argument, however, this case presents an “unorthodox” situation. Given these unusual facts, we initially stand back from the Wilkinson analysis and note that Lewis was an itinerant artistic performer. Other than to perform within the physical limitations of the Boom Boom Room and to comply with its basic rules and procedures, most of which simply required her to obey the law, she did as she pleased.

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Related

Lewis v. L.B. Dynasty
Court of Appeals of South Carolina, 2015
Lewis v. L.B. Dynasty
770 S.E.2d 393 (Supreme Court of South Carolina, 2015)

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Bluebook (online)
732 S.E.2d 662, 400 S.C. 129, 2012 WL 3828465, 2012 S.C. App. LEXIS 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-lb-dynasty-inc-scctapp-2012.