Labor & Employment Law Daily Wrap Up, WAGE-HOUR—9th Cir.: FLSA covers retaliation by ‘any person’ acting in employer’s interest against employee, (Nov 19, 2025)

By Jason Albright, J.D.

After the plaintiff sued their employer for allegedly misclassifying its dancers, one of the strip club’s partners, a manager, canceled an agreement for the dancer to perform at another club he managed.

Although the FLSA requires an underlying employment relationship, it covers retaliation committed by the employer or “any person acting directly or indirectly in the interest of an employer in relation to an employee,” the Ninth Circuit held. In a case involving a dancer at a Portland strip club whose agreement to perform weekly at another club was cancelled after they sued the first club and its managers under the FLSA, the appeals court found that a district court erred in holding that the dancer must have been employed by the second club when its manager—who was also a manager of the first club—engaged in the alleged retaliation (Hollis v. R&R Restaurants, Inc., No. 24-2464 (9th Cir. Nov. 18, 2025)).

Dancer at Sassy’s. The plaintiff, who prefers gender-neutral pronouns, according to the court, danced at a Portland strip club called Sassy’s approximately three to five times a week from June 2017 until March 2019, pursuant to a contract purporting to designate them as an independent contractor. No special training, licenses, experience, or skills were required to dance at Sassy’s, although dancers briefly auditioned for a manager. A manager provided them with a weekly schedule every Sunday, based partly on their and the other dancers’ interest and availability. They were allowed to work for other clubs during the same period and did so for a couple of months.

Club’s terms. Sassy’s controlled customer entry, set minimum prices for dances, required dancers to rotate between the stage and the floor, and hired and managed DJs, bartenders, and bouncers. Sassy’s controlled the music, although the plaintiff and the other dancers could make selections from a list of pre-approved songs when no DJ was present.

Clothing removal hierarchy. Sassy’s required dancers on stage to remove their clothing in a specified order: “teasing” during the first song, removing their top during the second, and removing their bottoms during the third.

Minimum prices. Sassy’s set minimum prices that dancers could charge for certain dances and required customers to tip dancers on stage at least one dollar, although the one-dollar rule was often not enforced.

And more rules. The plaintiff’s labor at Sassy’s was governed by a robust set of rules, violations of which could result in termination. For example, dancers had to maintain their hair, makeup, and physical appearance to certain standards, and the plaintiff’s schedule was reduced because they chose to wear their natural hair instead of a wig. Other rules concerned dancers’ interactions with customers, requiring that any issues or disputes be handled only by security or bar staff, as well as dancers’ handling of money, requiring them to keep one-dollar bills in bundles of 20.

“[H]ouse fees.” The plaintiff was required to pay “house fees” to Sassy’s for each shift. They and the other dancers also tipped the club bartenders, DJs, and bouncers, who would “make working [there] miserable” otherwise. The plaintiff, however, did not pay for any dance poles, facilities, utilities, advertising or other bills for Sassy’s, nor did they have management responsibilities.

“Sinferno Cabaret.” On two occasions, the dancer also performed a pole dance at a weekly variety showcase called “Sinferno Cabaret,” hosted by another adult entertainment club called Dante’s. On June 22, 2021, they received an email confirming their scheduled slot to perform at Dante’s for a third time, on July 25. The email also solicited their requests for future performance slots at Dante’s.

Collective action. Six days later, the dancer filed a collective action under 29 U.S.C. § 216(b) against the business entity that operates Sassy’s and two of its owner-managers alleging that Sassy’s misclassified its dancers as independent contractors instead of employees to avoid paying minimum wage and overtime. The complaint also alleged that the defendants were taking illegal kickbacks in the form of “house fees” and unlawfully retaining dancers’ tips.

Burnt by Dante’s. Then, on July 19, 2021, a partner and manager of both clubs emailed the dancer to cancel their scheduled performance at Dante’s, citing the lawsuit against Sassy’s. In pertinent part, the email read, “As you may or may not remember, I am one of the partners in Sassy’s. A few days ago we were served papers there for a class action lawsuit, of which you are the primary plaintiff.” The email continued, “That makes things complicated. Especially since it is regarding the claim of being an employee versus an independent contractor as stated in the contract with Sassy’s. Since you would be performing at Dante’s as an independent contractor, that puts another business that I’m a partner in at risk for a lawsuit. Therefore, we have been strongly advised to not have you perform at Dante’s.”

Shared goals… except employee status. The email went on to explain that the decision was unrelated to the dancer’s activism concerning racial and cultural bias at strip clubs. Rather, the manager expressed “shar[ing] most of [[the dancer’s]] goals.” “But when it comes to performers being independent contractors versus employees, we disagree.” He wrote that “[t]his is a serious lawsuit [for] which the legal bills alone... could easily put Sassy’s (or any of our other clubs) out of business.” Finally, he wrote, “I’m sorry that you won’t be able to perform at Dante’s, and I’m sorry that this has ended up this way.”

Amended complaint. Weeks later, the dancer amended the complaint. The First Amended Complaint (FAC) added the manager to the misclassification and wage-related claims at Sassy’s and alleged that his cancellation of the dancer’s scheduled performance at Dante’s constituted retaliation in violation of the FLSA and Oregon state law.

Decision below and appeal. The defendants moved for summary judgment, and a federal district court ultimately adopted a magistrate judge’s determination that the dancer could not bring a successful retaliation claim without establishing “that [they were] an employee of Dante’s.” On appeal, the dancer challenged only the district court’s decision as to the FLSA retaliation claim.

Defendant need not be actual employer. Reversing, the Ninth Circuit first held that the district court erred in requiring the dancer to establish that an employee-employer relationship existed with Dante’s at the time of the alleged retaliation. “The defendant in an FLSA retaliation action need not be the actual employer and the plaintiff need not have been employed by the actual employer when the retaliation occurred,” observed the appeals court. “Rather, the defendant need only have ‘act[ed]... indirectly in the interest of an employer in relation to an employee’ in committing the alleged retaliation. 29 U.S.C. § 203(d).”

In Arias v. Raimondo, 860 F.3d 1185, 1192 (9th Cir. 2017), the appeals court noted, it held that an employee may bring a retaliation claim: (1) against individuals other than the actual employer; (2) for retaliatory conduct that occurred after the employment terminated. Here, the FLSA only required the manager to have been acting “indirectly in the interest of” Sassy’s. See 29 U.S.C. § 203(d). And the dancer argued that the manager satisfied this requirement by terminating the agreement for them to perform because of the lawsuit they filed against Sassy’s.

“Economic realities.” The appeals court left it to the district court on remand to determine whether the dancer’s work at Sassy’s satisfied the Ninth Circuit’s “economic realities” test for establishing employee status under the FLSA. In ascertaining whether the dancer was an employee of Sassy’s, the court noted, it is not relevant that any FLSA wage and hour claims based on the alleged misclassification are time-barred.

Retaliation? Finally, the Ninth Circuit left it to the district court or trier of fact to determine on remand whether the manager’s acts in canceling the dancer’s scheduled performance and barring them from future work at Dante’s constituted retaliation. The defendants argued that the manager was merely protecting his business interests at Dante’s from a similar lawsuit by the dancer, but this argument failed, according to the appeals court. “An FLSA defendant cannot be allowed to take retaliatory actions against an FLSA plaintiff to limit legal liability created by the defendant’s alleged violations of the Act.”

The case is No. 24-2464.

Judge: Paez, R.

Attorneys: John P. Kristensen (Law Offices of John P. Kristensen) for Zoe Hollis. Sara Dueno (Dunn Carney Allen Higgins & Tongue) for R&R Restaurants, Inc., Stacy Mayhood, Ian Hannigan, and Frank Faillace.

Companies: R&R Restaurants, Inc.

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