O’Farrell Theatre’s court dance nears end 

The Mitchell Brothers O’Farrell Theatre has never been a stranger to controversy, but while some see the infamous strip club as an embattled symbol of free expression, others see a track record of labor troubles.

For the second time in its storied history, the theater’s management company faces a class-action lawsuit by dancers who claim they are owed money — as much as $10 million altogether — lost to unfair labor practices. Closing arguments are due to be scheduled today in the suit that was filed by three dancers in 2002, and has swollen to a plaintiff class of about 370.

The dancers allege that, between 1998 and 2003, the club took a percentage of their tips, which is illegal under California’s labor code.

Cinema Seven, the club’s management company, claims the dancers were paid under a "piece-rate" system, in which fees for the dances were documented separately from tips, and were split with the club as wages.

The theater first ran into labor troubles in 1994, when a class action that swelled to 500 plaintiffs claimed that they were employees, not independent contractors, and therefore entitled to wages. The club contended that the dancers were only entitled to their tips. The club settled out of court for $2.85 million and made the dancers employees.

Since dancers became employees instead of independent contractors, said Donna Rutter, attorney for Cinema Seven, the dances they performed became "property" of the club. For the years the suit focuses on, each dance cost patrons a fee of $20, Rutter said, half of which the club paid the dancer. Dancers kept tips paid over the $20.

But the plaintiffs argue that the scheme was illegal because it included a quota, wherein dancers were expected to turn in fees for 18 dances in an eight-hour night shift, or $360, of which dancers would get half in return. If they didn’t do 18 dances, the dancers had to pony up their tips, or even money they’d brought from home, according to Scott Emblidge, the plaintiff’s lawyer.

Rutter said the quota was a sugges-

tion. "If they didn’t make the quota, then fine. All Cinema Seven — the O’Farrell Theatre — said, was ‘Turn in half your dance fees,’" Rutter said.

But Emblidge claims that, while the quota might have officially been just a suggestion, dancers were penalized — by being assigned fewer and less desirable shifts — when they didn’t make it.

"On paper, you might say there was an 18-dance quota, but the signs that were posted for the dancers didn’t say, ‘Do 18 dances.’ They said, ‘Turn in $360,’" Emblidge said.

The first wage lawsuit against the O’Farrell Theatre sparked numerous similar suits at adult venues statewide. Recently, dancers at San Francisco’s Gold Club settled out of court with the venue. Rutter said this is the first such suit she knew of that has gone all the way to trial.

amartin@examiner.com

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