Full opinion text
OPINION & ORDER PAUL A. ENGELMAYER, District Judge: Rick’s Cabaret (“Rick’s NY” or “the Club”) is a New York strip club located in midtown Manhattan featuring exotic dancers. Plaintiffs were dancers, also known as entertainers, at the Club. In this lawsuit, plaintiffs allege violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the New York Labor Law (“NYLL”), § 190 et seq. & § 650 et seq., and regulations promulgated thereunder by the New York State Department of Labor, see N.Y. Comp.Codes R. & Regs, tit. 12, § 137-1.1 et seq. The Court has conditionally certified this as a collective action under the FLSA and has certified a class under Federal Rule of Civil Procedure 23. It is undisputed that, while working at Rick’s NY, plaintiffs were not paid any salary. Instead, they received money from customers, including in the form of “performance fees” for personal dances, as described further below. Plaintiffs claim that they were employees as defined under the FLSA and NYLL, and as such, were entitled to be paid a minimum wage by their employer. Plaintiffs bring five causes of action: (1) failure to pay the minimum wage under the FLSA; (2) failure to pay the minimum wage under the NYLL; (3) unlawful requesting and receiving of portions of plaintiffs’ wages in violation of NYLL § 198-b; (4) unlawful retention of plaintiffs’ gratuities in violation of NYLL § 196-d; and (5) unlawful deduction of wages by imposing fines and penalties in violation of NYLL § 193. Defendants consist of the corporation Peregrine Enterprises, Inc. (“Peregrine”), which owned and operated Rick’s NY, and two corporate parents, RCI Entertainment New York (“RCI New York”) and Rick’s Cabaret International, Inc. (“RCII”), all three of which plaintiffs claim was their employer. (For purposes of identifying litigation positions taken by the defendants, the Court refers to the defendants collectively as “Rick’s NY” or as “defendants.”) Defendants contend that plaintiffs were not employees, but were instead independent contractors, and therefore not covered by the FLSA or NYLL. Alternatively, defendants claim that the performance fees that plaintiffs took home should be counted against any statutory wage obligation of defendants, and therefore seek a monetary offset against any award of minimum wages. Defendants also bring a counterclaim for unjust enrichment, to the effect that plaintiffs will be unjustly enriched if they are awarded a judgment reflecting unpaid minimum wages while being allowed to retain the performance fees they received. Defendants further contend that, even if plaintiffs are held to have been employees of Peregrine, they were not employees of the two parent-company defendants. The parties now cross-move for summary judgment. Plaintiffs seek summary judgment on Claims One, Two, and Five (following the numbering above). See Dkt. 384; Pl. Br. 2. Defendants cross-move for summary judgment on all five claims, on the grounds that plaintiffs were independent contractors, not employees. Each party seeks judgment in its favor on defendants’ counterclaim. For the reasons that follow, plaintiffs’ motion for summary judgment is granted in part and denied in part; and defendants’ motion for summary judgment is denied in its entirety. Plaintiffs have also moved to supplement the record with additional evidence. That motion is granted. I. Background A. Overview of the Parties In September 2005, Rick’s NY opened for business. Stipulated Facts (“SF”) ¶ 7. It is located at 50 West 33rd Street, New York, NY. Id. ¶ 6. At all relevant times, Rick’s NY was owned and operated by Peregrine, id. ¶ 8, which is a wholly owned subsidiary of RCI New York, id. ¶31. RCI New York, in turn, was wholly owned at all relevant times by RCII, a Texas corporation. Id. ¶¶ 32, 34. Rick’s NY has always classified the dancers who perform at the Club as independent contractors. Id. ¶ 19. Rick’s NY had three stages on which dancers perform, id. ¶ 13, and a number of semiprivate rooms, id. ¶ 17. Dancers’ duties at the Club included public performances on stage. Dancers also gave personal dances (lap dances or table dances) to the Club’s customers, and entertained customers in the Club’s semi-private rooms. Id. ¶¶ 15-17. Dancers were not paid a wage at all by Rick’s NY; rather, they received various fees paid by customers. Id. ¶¶ 20, 181. Important here, a personal dance cost $20, although customers were permitted to pay dancers more. Id. ¶¶ 180, 182. If the customer paid the dancer in cash, the customer did so by paying the dancer directly, and the dancer retained the entire performance fee. If a customer wished to pay by credit card, he or she could purchase, for $24 each, vouchers worth $20 known as “Dance Dollars” from Rick’s NY. The customer could then give the dancer the Dance Dollar as payment for a personal dance. Id. ¶¶ 181, 183. The dancer later redeemed, from Rick’s NY, the Dance Dollar that she had received. Rick’s NY paid dancers $18 for each Dance Dollar that they redeemed; Rick’s NY retained the remaining $6. Id. ¶¶ 185,190. In addition to the above, the Club also had an on-site restaurant that sold liquor, food, and beverages. SF ¶ 10; Def. 56.1 ¶ 11; PI. Resp. 56.1 ¶ 11. The Club had multiple televisions on site, which displayed sporting events, news programming, and advertisements. Id. Further details about the operations of the Club and the activities and compensation of the dancers are set out below, in the course of addressing the motions for summary judgment. The class period, as defined at an earlier point in this litigation, runs from September 2005 to the entry of judgment. The FLSA collective action consists of 41 opt-in plaintiffs; the NYLL plaintiff class consists of more than 1,900 members. SF ¶ 30. B. Procedural History On March 30, 2009, plaintiffs filed their initial Complaint. Dkt. 1. On June 15, 2009, the plaintiffs moved for conditional certification of an FLSA collective class composed of dancers who had performed at Rick’s Cabaret in New York. Dkt. 15. On August 11, 2009, plaintiffs filed an Amended Complaint. Dkt. 42. On August 27, 2009, defendants moved to dismiss the Amended Complaint as against RCII for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). While the motion was pending, plaintiffs filed a Second Amended Complaint. Dkt. 71. On December 16, 2009, the Honorable John G. Koeltl, to whom this case was previously assigned, granted plaintiffs’ motion to conditionally certify an FLSA collective class. In the same order, he also dismissed plaintiffs’ claims as to RCII without prejudice. Dkt. 79. On May 28, 2010, plaintiffs filed a Third Amended Complaint, the operative pleading here. Dkt. 153 (“TAG”). The TAC included, among other modifications, amended allegations as to RCII. On December 20, 2010, 2010 WL 5297221, Judge Koeltl denied defendants’ motion to dismiss and granted plaintiffs’ motion for Rule 23 class certification. Dkt. 253 (“Cert. Op.”). He certified a Rule 23 class consisting of: All persons who worked at Rick’s New York or were employed by Defendant Rick’s Cabaret International Inc., RCI Entertainment (New York) Inc. and/or Peregrine Enterprises, Inc. in the state of New York as “entertainers” at any time six years prior to the filing of the Complaint to the entry of judgment in this case. Cert. Op. 3, 20. On February 3, 2011, defendants filed their Answer, including a counterclaim for unjust enrichment. Dkt. 254 (“Ans.”). On June 21, 2011, defendants filed an Amended Answer. Dkt. 279 (“Am. Ans.”). After numerous extensions, fact discovery closed October 31, 2012, and the parties sought leave to cross-move for summary judgment. On February 1, 2013, the parties submitted joint stipulated facts, as directed by the Court. Dkt. 454 (“SF”). On February 20, 2013, the parties cross-moved for summary judgment. On March 15, 2013, the parties each submitted opposition papers. On April 3, 2013, the parties submitted reply memoranda. In their summary judgment motion, plaintiffs contend that they were employees, and thus entitled to payment of unpaid wages for the hours during which they worked at Rick’s NY. They further argue that the failure to pay them minimum wage was a willful violation of the FLSA and NYLL, entitling them to a three-year statute of limitations under the FLSA and to liquidated damages under NYLL. Finally, plaintiffs assert that all three defendant companies were their employers as a matter of law, entitling them to recover against all three, jointly and severally. Plaintiffs also seek summary judgment as to defendants’ counterclaim for unjust enrichment. In their summary judgment motion, defendants argue that plaintiffs were at all times independent contractors, and therefore fell outside the coverage of the FLSA and NYLL. Alternatively, defendants contend that, as a matter of law, the performance fees paid directly to plaintiffs by customers should be held to offset any unpaid wages that are held due. Relatedly, defendants seek summary judgment on their counterclaim for unjust enrichment. Finally, defendants argue that as a matter of law, any violations were not willful and that only Peregrine, and not RCI New York or RCII, was plaintiffs’ employer. On April" 3, 2013, plaintiffs submitted a motion to supplement the record with.new evidence, namely: (1) a March 15, 2013 video and transcript of a television interview of one of defendants’ employees on Fox Business Network; and (2) defendants’ March 16, 2013 Twitter post regarding that interview. On April 17, 2013, defendants opposed the motion to supplement; on April 22, 2013, plaintiffs submitted their reply. On July 31, 2013, the Court heard extended oral argument. II. Legal Standard To prevail on a motion for summary judgment, the movant must “show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts “in the light most favorable” to the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Holcomb v. Iona Coll, 521 F.3d 130, 132 (2d Cir.2008). To survive a summary judgment motion, the opposing party must establish a genuine issue of fact by “citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). “A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment,” because “conclusory allegations or denials cannot by themselves create a genuine issue of material fact where, none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.2010) (citation omitted). Only disputes over “facts that might affect the outcome of the suit under the governing law” will preclude a grant of summary judgment. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether there are genuine issues of material fact, the Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir.2012) (citing Terry v. Ashcroft, 336 F.3d. 128, 137 (2d Cir.2003)). III. Were Plaintiffs Employees or Independent Contractors Under the FLSA and NYLL? The central issue in this case is whether the dancers at Rick’s were employees within the meaning of the FLSA and the NYLL. If not, then they were independent contractors outside the reach of these statutes, and summary judgment on all claims must be granted for defendants. If, however, the dancers were employees, the Court must address several subsidiary issues as to plaintiffs’ minimum-wage claims, including.whether defendants are entitled to an offset for performance fees paid to the dancers; whether the Club’s failure to pay the minimum wage was willful; and which defendants were the dancers’ employers. Because the standards for determining employee status under the FLSA and the NYLL, although similar, are not identical, the Court addresses and applies each statute in turn. A. The FLSA’s Economic Realities Test The FLSA defines an “employee” as “any individual employed by an employer”; it defines “employ” as “to suffer or permit to work.” 29 U.S.C. §§ 203(e)(1), 203(g). “The definition is necessarily a broad one in accordance with the remedial purpose of the Act.” Brock v. Superior Care, 840 F.2d 1054, 1058 (2d Cir.1988); see also United States v. Rosenwasser, 323 U.S. 360, 363, 65 S.Ct. 295, 89 L.Ed. 301 (1945); Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 754 (9th Cir.1979). The Second Circuit has adopted an “economic realities” test to determine whether an individual is an employee or an independent contractor for FLSA purposes. The factors considered include: (1) the degree of control exercised by the employer over the workers, (2) the workers’ opportunity for profit or loss and their investment in the business, (3) the degree of skill and independent initiative required to perform the work, (4) the permanence or duration of the working relationship, and (5) the extent to which the work is an integral part of the employer’s business. Brock, 840 F.2d at 1058-59; see also Gayle v. Harry’s Nurses Registry Inc., 2009 WL 605790, at *5 (E-D.N.Y.2Ó09). No factor is dispositive: “[R]ather, the test is" based on a totality of the circumstances” analysis, with the ultimate question being whether the “workers depend upon someone else’s business for the opportunity to render service or are in business for themselves.” Brock, 840 F.2d at 1059; see also Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947) (“[T]he determination of the relationship does not depend on such isolated factors but rather upon the circumstances of the whole activity.”). Further, “such status does not require the continuous monitoring of employees, looking over their shoulders at all times, or any sort of absolute control of one’s employees”; that is, even if an employer’s control were “restricted, or exercised only occasionally,” that does not remove the employee from the protections of the FLSA. Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir.1999); see also Donovan v. Janitorial Servs., Inc., 672 F.2d 528, 531 (5th Cir.1982). That an employer does not exercise control continuously or consistently “does not diminish the significance of its existence.” Irizarry v. Catsimatidis, 722 F.3d 99, 111 (2d Cir.2013) (citation omitted). The application of the economic realities test is inherently case-specific, turning on the totality of the relevant circumstances. However, before embarking on an examination of how the factors identified in the Second Circuit’s economic realities test apply to Rick’s NY, the Court notes that it is not the first court to address whether exotic dancers at a strip club such as Rick’s NY are employees under the FLSA. Nearly “[without exception, these courts have found an employment relationship and required the nightclub to pay its dancers a minimum wage.” Harrell v. Diamond A Entm’t, Inc., 992 F.Supp. 1343, 1348 (M.D.Fla.1997); see Reich v. Circle C. Invest., Inc., 998 F.2d 324, 329 (5th Cir.1993); Thornton v. Crazy Horse, Inc., No. 3:06-CV-00251-TMB, 2012 WL 2175753 (D.Alaska June 14, 2012); Clincy v. Galardi S. Enters., Inc., 808 F.Supp.2d 1326, 1343 (N.D.Ga.2011); Thompson v. Linda and A. Inc., 779 F.Supp.2d 139, 151 (D.D.C.2011); Morse v. Mer Corp., 2010 WL 2346334, at *6 (S.D.Ind.2010); Reich v. Priba Corp., 890 F.Supp. 586, 594 (N.D.Tex.1995); Martin v. Priba Corp., 1992 WL 486911, at *5 (N.D.Tex.1992); see also Doe v. Cin-Lan, Inc., No. 08-CV-12719, 2008 WL 4960170 (E.D.Mich.2008) (in assessing motion for preliminary injunction, finding that dancer was substantially likely to succeed on claim that she is an employee under FLSA); Jeffcoat v. Alaska Dep’t of Labor, 732 P.2d 1073 (Alaska 1987) (finding dancers to be employees under state labor laws modeled on FLSA). The only two cases to hold to the contrary under the FLSA are Matson v. 7455, Inc., No. CV 98-788-HA, 2000 WL 1132110 (D.Or. Jan. 14, 2000), and Hilborn v. Prime Time Club, Inc., No. 4:11CV00197 BSM, ECF Doe. 89, 2012 WL 9187581 (E.D.Ark. July 12, 2012). Defense counsel acknowledged at argument that the clear majority of cases have found exotic dancers to be employees under the FLSA. See Tr. 16-17. 1. The Degree of Control Exercised by Rick’s NY Rick’s NY argues that it exercised minimal control over the dancers, and that, therefore, the dancers were more like independent contractors than they were like employees. Def. Br. 16-18. The dancers counter that Rick’s NY exerted an “immense degree” of control by, among other things, imposing written guidelines that detailed the intricacies of their employment relationship. PI. Br. 8. Between September 2005 and February 2010, Rick’s NY had Club-imposed written guidelines, compiled in a pamphlet titled “Entertainer Guidelines” (the “Guidelines”), that covered dancer conduct. A number of different versions of the Guidelines existed over the course of the class period, but they contained similar restrictions on dancers’ behavior. See PX 53 (“Sistrunk Dep.”) Ex. 7-9, 12-13; PX 102. The Guidelines set out rules applicable to all dancers while working at the Club. Violations of these Guidelines were punishable by fines or discharge. See Sistrunk Dep. Ex. 7-8, 12-13 (“Entertainers who fail to comply with the above-cited guidelines will be subject to disciplinary action, up to and including discharge.”). The Guidelines regulated almost every aspect of the dancers’ behavior within the Club. For example, dancers were forbidden from: • chewing gum (Sistrunk Dep. Ex. 9 ¶ 10 (“Entertainers are prohibited from chewing gum on the floor.”); id. Ex. 7 ¶ 9 (“Gum chewing is unacceptable .... ”); id. Ex. 12 ¶ 9 (“There is no gum chewing.”)); • having a bad attitude (Id. Ex. 9 ¶ 10 (“Anyone caught referring to someone in a bad manner will be reprimanded. Do no[t] start rumors about other people nor give a bad reference to a guest about anyone.”); • “using or having their cell phone while on the [dance] floor,” id. ¶ 22; • “having any type of hand bags or purse on the floor,” id.; • using public restrooms (Id. Ex. 13 ¶ 13 (“Entertainers are prohibited from using public bathrooms upstairs or guest bathrooms.”); accord id. Ex. 9 ¶ 9). The Guidelines also addressed when dancers could be scheduled to work: • “We have a Three Day Minimum Commitment Requirement [sic ] one of those days has to be a Friday, Saturday, Sunday, or Monday.” Id. Ex. 12 ¶ 1 (emphasis in original). • ‘We have Shifts[.] Morning shift is 11:00 am until 7:00pm. Night shifts are 4 to 12, 8 to 4 or 10 to 4[.] [P]lease at the time you make your commitment, inform housemom on [sic ] your start time.” Id. ¶ 2 (emphasis in original). • “Entertainers are required to work an eight hour shift.” Id. Ex. 9 ¶ 5. • “Entertainers will receive a paper schedule from the housemom to ensure that there are no mistakes or misunderstandings.” Id. ¶ 28. • “If you are unable to work the required schedule you must get a manager’s approval.” Id. ¶ 27. • “There is a 24 hour notice of cancellation or you will be subject to a fine....” Id. Ex. 7¶3. Once a dancer was at the Club, the Guidelines set certain procedures for her checking in and out: • “Entertainers must clock in at the cage upon arrival.” Id. Ex. 9 ¶ 2. • “Entertainers must use employee entrance at all times, however before 11:00am and after 3:30am all doors will be locked and you will need to use the main entrance to exit the building.” Id. ¶ 1. • “Entertainers are prohibited from showing up or leaving Ricks Cabaret with a customer. This is unacceptable and will result in an immediate termination.” Id. Ex. 9 ¶ 6. • “Entertainers, when you are completely finished getting ready; you must then go to the second floor and check in with the DJ in person so he can put you on rotation.” Id. ¶ 3. • “Entertainers are required to ask a manager for permission before checking out at the cage even if you have worked eight hours or longer. Entertainers are required to get a clock out slip from the cage, in doing so you will need to acquire three signatures on your slip from the cage, the DJ and the housemom. You must have your slip ready to give to the doormen upon leaving or you will be sent back to the cage for another slip.” Id. Ex. 9 ¶ 5; see also id. Ex. 12 ¶ 13 (“After you complete your 8 hour shift and you would like to leave you need to inform (Tito or Ken) or an available manager that you would like to go. If you do not clock out with a manager we will assume you quit and will be made inactive.”). The Guidelines also set out a range of fees that dancers were required to pay: • Dancers were required to pay a house fee to the Club each night, which varied according to the time the dancer clocked in. See SF ¶¶ 128-130; Sistrunk Dep. Ex. 7 ¶ 4. • The Guidelines provided for a $6 “promo fee” to be paid every night a dancer worked. See Sistrunk Dep. Ex. 7 ¶ 5; id. Ex. 9 ¶ 2. • Dancers were also required to pay nightly “tip-out” fees. Specifically, “[t]here is a mandatory $20.00 minimum tip-out for housemom, DJ, and management.... If you walk out and do not tip one of the following you will be fined or possibly made inactive.” Id. Ex. 9 ¶ 34; see also id. Ex. 7 ¶ 6 (detailing music fee, management fee, and dressing room fee of $20 each). The Guidelines also addressed dancers’ appearance and dress, imposing a strict dress code: • “Hair, Make-Up and Dresses should be well coordinated and in good taste.” Id. Ex. 7 ¶ 9. • “The following should be maintained at all times: your appearance, weight, breath and grooming (hair, hands, and toes).” Id. • “All entertainers must have a minimum of 4 or more dresses. Please do not wear the same dress everyday [sic ] or every other day.” Id. • “Entertainers must wear a gown dress below the knee Monday thru [sic] Friday. Entertainers are allowed to wear short dresses, two pieces or lingerie on Saturday and Sunday only. Entertainers are prohibited from wearing transparent outfits at any time.” Id. Ex. 12 ¶ 18. • “Entertainers are prohibited from using any type of glitter; you are not allowed to use body glitter or have glitter on any of your outfits.” Id. ¶ 17. • “Boots and wedges are unacceptable. All shoes should have at least a 4 inch minimum stiletto heel.” Id. Ex. 8 ¶ 9. • “Entertainers must cover all tattoos while on the floor and stage. If the make-up covering your tattoos is worn off through out [sic ] the night, it is your responsibility to have it recovered.” Id. Ex. 9 ¶ 20. Finally, the Guidelines regulated the method and manner in which dancers could dance (both on the stage and during personal dances) and dancers’ conduct on the floor: • “Entertainers are required when dancing a two song set to dance their first song with your dress on and second song with your dress off.” Id. ¶ 4. • “While on stage STAY ON YOUR FEET ... For safety reasons, no floor work, no splits, no pole work on pedestal stage.” Id. Ex. 7 ¶ 10 (emphasis in original). • “Entertainers must never have both knees on the ground or on a guest at the same time. Entertainers may go down on one knee only while on stage or during a table dance. Entertainers are prohibited from performing any type of floor show.” Id. Ex. 9 ¶ 26; see also id. Ex. 7 ¶ 10 (“While dancing one foot remains on the floor at all times. Straddling and/or grinding is unacceptable.”). • “[Setting on customers[’] laps without your dress on is unacceptable.” Id. Ex. 8 ¶ 9. • “Moving guests from their chairs is unacceptable.” Id. Ex. 7 ¶ 10. • “Entertainers may never refuse an offer of food or drinks, especially a bottle.” Id. Ex. 9 ¶ 25. • “Entertainers are prohibited from asking for any type of tip in a private room.” Id. Ex. 9 ¶ 14. As an enforcement mechanism, the Guidelines stated that a failure to follow any of the rules listed in the Guidelines could result in warnings, fines, suspension, or termination. See, e.g., Sistrunk Dep. Ex. 7 ¶ 15 (“Entertainers who fail to comply with the above-cited guidelines will be subject to disciplinary action, up to and including discharge.”). As set out in the Guidelines, the fines varied depending on the violation. For example, if a dancer failed to show up as scheduled, the Guidelines provided for a $50 fine if the violation occurred Tuesday through Friday, and a $100 fine if the violation occurred Saturday through Monday. Id. ¶ 3; id. Ex. 9 ¶ 29. If a dancer was late to the stage or a “no show” to the stage, she was fined $50 and $100, respectively. Sistrunk Dep. Ex. 12 ¶ 10. If a dancer moved a guest, she was subject to a $50 fine. Id. If a dancer failed to follow the Guidelines’ rules as to dancing, she would receive two warnings; on the third violation, she was subject to a $50 fine; on the fourth, she was made inactive. Id. Ex. 8 ¶ 10. Dancers could also be fined $100 for chewing gum. PL 56.1 ¶ 251; Def. Resp. 56.1 ¶251. Rick’s NY also posted signs at the Club to alert dancers to the Guidelines and possible fines. See Sistrunk Dep. Ex. 15. These signs reported the mandatory tip-outs, the $100 fine for gum chewing, and the fines to be imposed on “no-show entertainers.” Id. The Club also required dancers to attend monthly meetings. See id. Ex. 7 ¶ 14 (“All entertainers must attend monthly meetings, which are on the 1st Saturday of the month at 2:00 pm. No Exceptions!!!!”). The Guidelines were in place until February 2010, and were reviewed with every new dancer during her orientation. Def. 56.1 ¶¶ 54-55; PI. Resp. 56.1 ¶¶ 54-55. In February 2010, approximately nine months after this lawsuit was filed, Rick’s NY ceased to use written guidelines. Id. On their face, the Club’s Guidelines reflect the exercise of tight control, indeed, control fairly described as micromanagement, by Rick’s NY over the dancers. Defendants make several arguments as to why the Club’s control over the dancers was in fact less strict. First, defendants assert, some rules imposed by the written guidelines served to ensure the dancers’ safety and the club’s compliance with the law. For example, defendants note, a rule prohibiting dancers from manipulating the straps on their thong underwear existed, see Sistrunk Dep. Ex. 13 ¶ 6 (“Entertainers must not pull up their T-bars to show tan lines at any time.”), because, as day manager Steven DeAngelo testified, “there is a general prohibition against exposing private areas prohibited by law.” Dkt. 429 (DeAngelo Deck) ¶ 11. Defendants contend that other rules served the interests of safety and legal compliance. See, e.g., PI. 56.1 ¶ 175; Def. Resp. 56.1 ¶ 175 (dancers are not allowed to do tricks or climb on a pole that is on stage because the stage is small, 2 feet by 2 feet, and customers are close to the stage); PL 56.1 ¶ 176; Def. Resp 56.1 ¶ 176 (dancers are not allowed to do “floor work” because their body oils could make the stage slippery and unsafe for the next dancer); PL 56.1 ¶ 184; Def. Resp 56.1 ¶ 184 (dancers and DJs are only allowed to play songs that the Club has a license to play). The Court agrees with defendants that, where a club implements regulations to assure compliance with law, those regulations are not evidence of the club’s control over its dancers. See Matson v. 7455, Inc., 2000 WL 1132110, at *4 (D.Or.2000) (defendant’s requirement that all dancers keep six inches between customers held not indicative of control because it was required by law). The same is fairly said of rules aimed at the safety of dancers and customers, such as those prohibiting dancers from doing floor work or dancing on the poles, which defendants have fairly argued were adopted for safety reasons. Accordingly, the Court does not consider such rules in its analysis of control. However, the vast majority of Rick’s NY’s Guidelines had nothing whatsoever to do with safety concerns or compliance with law. Rules such as those setting the length of a dancer’s dress, the height of her shoe, the meetings she was required to attend, the entrances she was allowed to enter, the amount of money she was required to tip-out at the end of each night, or her use of chewing gum or stiletto heels, and many more, were neither mandated by state or federal law, nor justified on grounds of workplace safety. Notably, defendants argue that the Guidelines with regard to dress code existed to perpetuate Rick’s NY’s “upscale club” feel. Def. Reply Br. 6. That representation is of no help to defendants’ claim of limited control here: Although maintaining an atmosphere perceived as “upscale” may have helped the Club in its marketing or assisted it to appeal to a higher-end customer base, those goals had nothing to do with providing a safe and law-abiding venue. Rather, they helped Rick’s NY achieve its business ends. The Court finds that the Guidelines, as a whole, compellingly indicate that Rick’s NY had significant control over the dancers. In an alternative argument, Rick’s NY notes that, even though the Guidelines expressly gave the Club the right to impose monetary fines for non-compliance and stated that a dancer’s failure to comply with the rules would result in “discipline and possible discharge,” see Sistrunk Dep. Ex. 7 ¶ 15, the Club rarely collected such fines, see Def. Reply Br. 6. Instead, Rick’s NY contends, most fines were removed after management had discussed the violation with the dancer; where a fine was imposed, the money was generally credited back to the dancer after the Club addressed the issue with her. PI. 56.1 ¶ 30; Def. Resp. 56.1 ¶ 30. Plaintiffs largely concede these facts: They acknowledge that, in practice, if a dancer complained about, talked about, or contested a fine to management, the fine was generally lifted. Id.; PI. Br. 7, 15. On this basis, Rick’s NY argues that the non-imposition or reversal of fines reveals “equal leverage between the [C]lub and the entertainer,” not Club control over the dancers. Def. Reply Br. 6. The dancers counter that the very existence of written guidelines that governed their clothing, behavior, and performance style, coupled with the threat of a fine, reveal Rick NY’s control. PI. Br. 8. Plaintiffs’ argument on this point is far the more persuasive. In total, Rick’s NY imposed nearly 7,000 fines on its entertainers between 2005 and February 2010. See PX 264 (ClubTrax chart detailing fines imposed); see also PI. 56.1 ¶230 (sorting data on PX 264 into categories of fines). Among the prevalent fines were the 5,897 fines that were imposed for “NO SHOW”; 227 for “LATE FOR SHIFT”; 218 for “Moved a customer”; 41 for “MISSED A SONG ...”; 29 for “CHEWING GUM ...”; 13 for “DID NOT STAY FOR 8 HOURS.” Id. Other fines were imposed more sparingly, but still reflect that Rick’s had the authority to enforce the Guidelines: Eight fines were imposed for refusing a drink or a bottle; two for using the public restroom; one for “LEAVING WITHOUT PERMISSION”; and one for “SLOW WORK ON STAGE.” Id. Defendants do not meaningfully dispute that these fines were imposed. Rather, they argue that “[w]hile the above charges do appear on the ClubTrax charge summary, such fines were not all ‘imposed,’ because the vast majority of them have been reversed.” Def. Resp. 56.1 ¶ 230. Even though Rick’s NY ultimately removed, or credited to the dancer the dollar value of, most of these fines, its written threat to impose such fines, and its imposition of such fines on non-compliant dancers, even if largely retracted, is strong evidence of its control over them. See Clincy, 808 F.Supp.2d at 1345 (finding that club exerted control over its dancers when it had the authority to fine or discipline dancers for violations, even when it did not do so “consistently or uniformly”); Thompson v. Linda and A. Inc., 779 F.Supp.2d 139, 148 (D.D.C.2011) (finding that the ability to punish dancers for violations of House Rules through fines are indicative of club’s control even when violations did not result in fines or fines were uncollected). The mere threat of imposition of such a fine realistically operated as a sword of Damocles over the dancers, helping ensure dancer compliance with the Guidelines. Importantly, the Second Circuit, applying the economic realities test, has recognized that an employer’s “potential power,” even if exercised only occasionally, is a form of control. “Control may be restricted, or exercised only occasionally, without removing the employment relationship from the protections of the FLSA, since such limitations on control do not diminish the significance of its existence.” Irizarry, 722 F.3d at 110 (quoting Herman, 172 F.3d at 139). Revealingly in this respect, Rick’s NY acknowledges that the practice of threatening dancers with fines was a “necessary evil”; its general manager, Ken Sistrunk, testified that he imposed fines to “get the entertainer’s attention ... when all else failfed].” Sistrunk Dep. 201-05; see also PI. 56.1 ¶¶ 228, 231; Def. Resp. 56.1 ¶¶228, 231; accord Def. Reply Br. 6 (“Whether fines were ultimately imposed depends on the steps taken by Plaintiffs to have fines removed.”). But “getting the entertainer’s attention” is but a euphemism for exercising control over these dancers. Rick’s NY’s announced power to impose fines, and its imposition of them even on a temporary basis, are strong indicators of its control over the dancers. See Clincy, 808 F.Supp.2d at 1344-46 (finding that club exercised a “significant amount of control over the[ir] entertainers” when club had a written code of conduct, even though those rules were not imposed “consistently or uniformly”); Harrell, 992 F.Supp. at 1349-50 (finding that club exercised “considerable control over its dancers” when club, among other conditions, required its dancers to abide by written rules and regulations); Priba Corp., 890 F.Supp. at 592 (finding that club exercised control over its dancers when, among other things, club prescribed guidelines “describing the way in which an entertainer is to conduct herself while at the club”). Even apart from the written Guidelines, the undisputed facts reflect that Rick’s NY, not the dancers, controlled the way the Club operated. Rick’s NY — not the dancers — was in charge of advertising, hiring dancers, determining prices for personal dances and time in semi-private rooms, providing sound and light for dances, and setting the theme of the Club. See Part III.A.2 infra. Rick’s NY also, for example, controlled what the dancers could dance to, because the dancers were limited to songs for which Rick’s NY had bought a license. See PL 56.1 ¶ 184; Def. Resp 56.1 ¶ 184. The Club’s control of the overall operations of Rick’s NY is strong evidence of the Club’s control over the means by which dancers could make money from customers. Rick’s NY also managed certain small aspects of its dancers’ lives. For example, general manager Sistrunk testified that at times he took steps to let a dancer know that she needed to lose weight if she wanted to continue performing at the Club. Sistrunk Dep. 63-64. Sistrunk couched his actions as being “in [the entertainer’s] own best interest,” but, whatever his subjective motivation, a club’s general manager’s instructions to a dancer of the need to lose weight or otherwise cease performing, and his request that an entertainer take time off to lose some weight before being invited back, are unavoidably means of exercising control over her. Pl. 56.1 ¶ 143; Def. Resp. 56.1 ¶ 143; see generally Pl. 56.1 ¶¶ 142-147; Def. Resp. 56.1 ¶¶ 142-147. Based on the foregoing, the Court finds that the factor of control weighs overwhelmingly in favor of a finding that the dancers were employees, not independent contractors, under the FLSA. 2. The Relative Investments of Rick’s NY and the Dancers The Court next considers the dancers’ opportunity for profit or loss and their investment in the business. The undisputed facts establish the following as to the allocation of financial duties and investments in the business between Rick’s NY and the dancers who performed there. Rick’s NY set the Club’s location and business hours, determined its aesthetics and decor, and paid wages to all of its bartenders, waiters, managers, and cleaners. Rick’s NY was also responsible for paying for the sound and light equipment at the Club, all furniture, any necessary repairs and maintenance, and bar and kitchen supplies. Pl. 56.1 ¶ 314; Def. Reps. 56.1 ¶314. The Club’s marketing efforts included special promotions; websites; and advertisements in publications, on its website, and on flyers at the Club itself. Pl. 56.1 ¶¶ 293-301; Def. Resp. 56.1 ¶¶ 293-301. Although dancers could promote themselves and encourage potential customers to come to the Club, Rick’s NY provided advertising for the Club, Pl. 56.1 ¶¶ 285, 314; Def. Resp. 56.1 ¶¶ 285, 314, and Eric Langan, the president of all three defendant corporations, set the advertising budget for the Club, Pl. 56.1 ¶ 291; Def. Resp. 56.1 ¶291. Rick’s NY also set the price of the cover charge that customers were required to pay, at the Club’s discretion, to enter the facilities. Pl. 56.1 ¶ 281; Def. Resp. 56.1 ¶ 281; SF ¶ 9. Between 2006 and 2012, Peregrine spent more than $4 million dollars each fiscal year to operate Rick’s NY. Pl. 56.1 ¶ 312; Def. Resp. 56.1 ¶ 312. Between 2009 and 2011, Peregrine spent an additional $7 million dollars in operational fees. Pl. 56.1 ¶ 313; Def. Resp. 56.1 ¶ 313. In contrast, dancers at Rick’s NY were responsible for just three things of a monetary nature: paying for their clothes and make-up, paying a House Fee to perform at the Club each night, and tipping-out the “house mom” (who helped supervise the dancers and the dressing rooms), management, and the DJ. These facts, viewed in totality, reflect a far greater investment by Rick’s NY than by the dancers. In the face of these facts, Rick’s NY argues that each dancer controlled her own profits and losses because each could schedule how many nights she worked each week, and, by developing relationships with certain customers, could encourage those customers to visit more often and tip more, bringing the prospect of additional personal dances and tips above the required charge set by Rick’s NY. Def. Br. 20. But these facts, although evincing a degree of control by each individual dancer over her overall income from performing at the Club, do not come close to outweighing the facts set out above. Rick’s NY heavily controlled customer access to the Club; it advertised to attract a clientele that it favored; it set and imposed cover charges; and it set the amounts required for a personal dance or time in a semi-private room. On any given night, Rick’s NY did far more to bring customers into the Club than any individual dancer. Given Rick NY’s control over most critical determinants of the number of customers who visited the Club on any given night or over time, the Club exercised a high degree of control over a dancer’s opportunity for profit. In this respect, the Court agrees with the Fifth Circuit that exotic dancers are “far more closely akin to wage earners toiling for a living, than to independent entrepreneurs seeking a return on their risky capital investments.” Reich, 998 F.2d at 328 (quoting Brock v. Mr. W Fireworks, 814 F.2d 1042, 1051 (5th Cir.1987)). The extent of the economic risk which the dancers incurred — a House Fee and nightly tip-out fees, both mandated by Rick’s NY, and both readily offset by performance fees and cash tips from customers that the dancer was highly likely to be given — was vastly less than the risk that Rick’s NY undertook. By the same token, although the dancers, by working longer hours and by cultivating customers, had a degree of control over their income, Rick’s NY stood to gain measurably more than did the dancers. Rick’s NY, unlike the dancers, stood to earn a return on its investment. The second factor identified by the Second Circuit therefore also points in favor of the dancers’ being employees within the meaning of the FLSA. 3. The Degree of Skill and Independent Initiative Required The Court next considers the degree of skill and independent initiative required of the dancers. As to skill, many dancers had no prior experience with dancing before working at Rick’s NY; the Club in fact did not require that dancers have any formal dance training or prior experience as a stripper. SF ¶ 105. As to initiative, Rick’s NY argues that entertainers needed to have independent initiative to succeed. Def. Br. 21. It argues that dancers could make more money if they had a better “dancing style,” if they could identify “which customers to approach for dances” because some were more likely to pay for a dance than others, and if they could learn “the best way to approach” a customer to get him to purchase a dance. Id. Rick’s NY thus equates being a skillful dancer with being a successful salesperson. See id. Although efforts by dancers to cultivate customers surely enhanced the money the customers paid them, such “hustling” is not skilled work. And every court to consider such a “hustling” argument by a strip-club proprietor has rejected it. See Clincy, 808 F.Supp.2d at 1346 n. 12 (quoting Harrell, 992 F.Supp. at 1350). Courts have further consistently held that there is limited genuine skill required to be an exotic dancer. See Circle C. Invs., 998 F.2d at 328 (topless dancers “do not exhibit the skill or initiative indicative of persons in business for themselves”); Priba Corp., 890 F.Supp. at 593 (dancers “do not have the opportunity to exercise the skill and initiative necessary to elevate their status to that of independent contractors”); Harrell, 992 F.Supp. at 1351. This Court is unpersuaded that the lot of a dancer at Rick’s NY was any different in kind than the dancer-plaintiffs in those cases, or that dancers at the Club exercised the kind of initiative and skill necessary to render them independent contractors. The third factor therefore points in favor of the dancers being employees under the FLSA. 4. The Permanency and Duration of the Employment Relationship As to the fourth factor identified by the Second Circuit, dancers at Rick’s NY worked at the Club with no specified end date or contract-completion date. PL 56.1 ¶ 335; Def. Resp. 56.1 ¶ 335. Many of the Rule 23 class members performed at Rick’s NY20 or fewer times. See Dkt. 422 (Morizadeh Decl.) ¶¶ 14-15, Ex. 1 (1,374 members of the class, or nearly 60%, performed at Rick’s NY20 or fewer times; 354 members, or around 15%, performed just once; and 1,151 members, or nearly 50%, performed 10 or fewer times). Furthermore, dancers at Rick’s NY were free to dance at other adult entertainment clubs, or be employed by other businesses. Def. 56.1 ¶ 111; Pl. Resp. 56.1 ¶ 111. They were not required to work exclusively at Rick’s NY, and it is undisputed that many worked elsewhere. SF ¶¶ 133-139. This factor favors defendants’ argument that the dancers at the Club were not employees. But it is entitled to only modest weight in assessing employee status under the FLSA. That dancers were free to work at other clubs or in other lines of work, and that they were not permanent employees, do not distinguish them from countless workers in other areas of endeavor who are undeniably employees under the FLSA — for example, waiters, ushers, and bartenders. Other courts have similarly accorded limited weight to this factor, in comparison with the others considered under the FLSA test. See Circle C. Invs., 998 F.2d at 328-29 (finding lack of permanency, but holding other factors on balance outweigh this fáctor); Harrell, 992 F.Supp. at 1352 (“Other courts have found that exotic dancers tend to be itinerant, but have tended to place less emphasis on this factor.... This Court agrees.”); Priba Corp., 890 F.Supp. at 593 (“Because dancers tend to be itinerant, the court must focus on the nature of their dependence”). 5. The Extent to Which Dancers Were “Integral” to Rick’s NY As to the fifth factor considered under the FLSA test for employee status, Rick’s NY argues that the presence of exotic dancers was only one aspect of the Club’s facilities and was not integral to the Club. Def. Br. 22. It argues that the Club’s restaurant, bar, and televisions served to attract customers. Id. This argument is totally unpersuasive. No reasonable jury could conclude that exotic dancers were not integral to the success of a club that marketed itself as a club for exotic dancers. See Harrell, 992 F.Supp. at 1352 (“Exotic dancers are obviously essential to the success of a topless nightclub.”); Martin v. Circle C Invs., Inc., No. MO-91-CA43, 1991 WL 338239, at *4 (W.D.Tex. Mar. 27, 1991) (unlike shoe-shine employees at an airport, topless dancers are the “main attraction” at a topless nightclub and “obviously very important” to the business of the nightclub). And, in testimony that eviscerated Rick’s NTs argument on this point, Langan, the president of all three defendant corporations, acknowledged that “the most important thing to the [Rick’s Cabaret] brand is that [it has] entertainers.” Langan 10/7/09 Dep. 76. He added: “[W]ithout the girls, we’re just selling overpriced beers at a sports bar with bad TV’s.” Id. at 182. The Court finds that the presence of dancers at Rick’s NY was integral to the success of the Club. 6. Consideration of All Factors Considering the preceding factors in combination — even resolving all disputed facts in favor of defendants as the Court is required to do on plaintiffs’ motion for summary judgment — the Court comfortably concludes as a matter of economic reality that the dancers at Rick’s NY were employees, not independent contractors. Rick’s NY exerted significant control over its dancers’ behavior; Rick’s NY had the dominant opportunity for profit; the exotic dancers had no specialized skills and a limited real investment (essentially in their costumes and nightly fees); and the dancers were integral to the success of Rick’s NY. Measured against these factors, the transient and non-exclusive nature of the dancers’ employment is insufficient to remove them from the reach of the FLSA. See Harrell, 992 F.Supp. at 1349 (finding that dancer’s “freedom to work when she wants and for whomever she wants” did not “reflect[ ] economic independence,” and that these freedoms, in context, “merely mask[ed] the economic reality of dependence.”). Indeed, under the FLSA test, the five factors lopsidedly favor a finding that the dancers at the Club were employees. The Court so finds, as a matter of economic reality. Finally, as noted, Rick’s NY contends it had an agreement with its dancers to the effect that they were independent contractors. But under the economic realities test, this fact does not carry the day: “The [Supreme] Court noted in Rutherford that ‘[w]here the work done, in its essence, follows the usual path of an employee, putting on an “independent contractor” label does not take the worker from the protection of the Act.’ ” Irizarry v. Catsimatidis, 722 F.3d 99, 104 (2d Cir.2013) (second alteration in original) (quoting Rutherford, 331 U.S. at 729, 67 S.Ct. 1473). B. Employee Status under the NYLL Common Law Test The Court turns next to the question whether plaintiffs were employees under the NYLL. “Employee” is defined nearly identically (and with equal circularity) in the FLSA and NYLL. Compare 29 U.S.C.A. § 203(e)(1) (“[T]he term ‘employee’ means any individual employed by an employer.”), with NY Lab. Law § 190(2) (“ ‘Employee’ means any person employed for hire by an employer in any employment.”). “Employer” is also defined similarly in the two statutes. Compare 29 U.S.C.A. § 203(d) (“ ‘Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee .... ”), with N.Y. Lab. Law § 190(3) (“‘Employer’ includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service.”). However, notwithstanding these similarities, the law is unsettled whether precisely the same test for employee status applies under the two statutes. Many courts in this Circuit have applied the economic realities test to determine “whether an employer/employee relationship exists under the FLSA and the NYLL.” Campos v. Lemay, 2007 WL 1344344, at *4 (S.D.N.Y.2007) (emphasis in original). See, e.g., id. (“Since the Court has concluded that Plaintiff is a covered employee under the FLSA, it follows that Plaintiff is also entitled to partial summary judgment declaring that she is a covered employee under the NYLL.”); Ansoumana v. Gristede’s Operating Corp., 255 F.Supp.2d 184, 189-92 (S.D.N.Y.2003) (using the same economic realities test to determine employee status under both the FLSA and NYLL); Zhong v. Zijun Mo, 2012 WL 2923292, at *2 (E.D.N.Y.2012) (applying the economic realities test to determine employee status under both the FLSA and NYLL). The Second Circuit, however, has recently noted that the FLSA and NYLL analyses may differ. See Irizarry v. Catsimatidis, 722 F.3d 99, 117 (2d Cir.2013) (“Plaintiffs assert that the tests for ‘employer’ status are the same under the FLSA and the NYLL, but this question has not been answered by the New York Court of Appeals.”). And the New York Court of Appeals has articulated a standard for determining whether a worker is an employee or an independent contractor under the NYLL that is phrased differently than the FLSA inquiry. New York courts apply the “common law” test — a test used not only in connection with wage-protection statutes, but also to determine such issues as respondeat superior liability in tort suits, eligibility for unemployment benefits, and compliance with tax laws. Although “substantially similar” to the FLSA, see Browning v. Ceva Freight, LLC, 885 F.Supp.2d 590, 599 (E.D.N.Y.2012), the common law focuses more on “the degree of control exercised by the purported employer,” as opposed to the “economic reality of the situation,” Velu v. Velocity Express, Inc., 666 F.Supp.2d 300, 307 (E.D.N.Y.2009). Specifically, the New York Court of Appeals has stated that “the critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results.” Bynog v. Cipriani Grp., Inc., 1 N.Y.3d 193, 198, 770 N.Y.S.2d 692, 802 N.E.2d 1090 (2003); see Matter of Ted Is Back Corp., 64 N.Y.2d 725, 726, 485 N.Y.S.2d 742, 475 N.E.2d 113 (1984) (“control over the means is the most important factor to be considered when analyzing an employment relationship”); see also In re Hertz Corp., 2 N.Y.3d 733, 735, 778 N.Y.S.2d 743, 811 N.E.2d 5 (2004) (“An employer-employee relationship exists when the evidence demonstrates that the employer exercises control over the results produced by claimant or the means used to achieve the results.” (citing Matter of 12 Cornelia St., 56 N.Y.2d 895, 897, 453 N.Y.S.2d 402, 438 N.E.2d 1117 (1982))). The New York Court of Appeals has articulated five factors relevant to determining control under the common law test. They are whether the worker (1) worked at his/her own convenience; (2) was free to engage in other employment; (3) received fringe benefits; (4) was on the employer’s payroll; and (5) was on a fixed schedule. Bynog, 1 N.Y.3d at 198, 770 N.Y.S.2d 692, 802 N.E.2d 1090; see Bhanti v. Brookhaven Mem’l Hosp. Med. Ctr., Inc., 260 A.D.2d 334, 687 N.Y.S.2d 667 (2nd Dep’t 1999); see also Browning, 885 F.Supp.2d at 598; Deboissiere v. Am. Modification Agency, 2010 WL 4340642, at *3 (E.D.N.Y.2010); Velu, 666 F.Supp.2d at 307. These factors, however, are not exhaustive: New York courts commonly consider additional factors. See Murphy v. ERA United Realty, 251 A.D.2d 469, 470-71, 674 N.Y.S.2d 415 (2d Dep’t 1998) (considering factors including requirement that worker wear the company uniform, follow company procedures, attend mandatory meetings, sign in and out of the office, and coordinate vacation time with supervisor); E. Coast Indus., Inc. v. Becconsall, 60 Misc.2d 84, 301 N.Y.S.2d 778, 779-80 (N.Y.Dist.Ct.1969) (factors important in evaluating control included the employer’s authority to decide the timing and selection of each job and employer’s right to discharge or fire the employee); see also Vysovsky v. Glassman, No. 01 Civ. 2531(LMM), 2007 WL 3130562, at *14 (S.D.N.Y. Oct. 23, 2007) (considering central dispatch system and uniform requirement in determining • employee status under NYLL). For this reason, as Judge Kaplan of this Court has noted, notwithstanding Bynog’s enumeration of five factors, “the critical determinant is the degree to which the purported employer exercises control in fact over the results produced or the means used to obtain them.” Edwards v. Publishers Circulation Fulfillment, Inc., 268 F.R.D. 181, 184 (S.D.N.Y.2010) (Kaplan, J.) (citing Bynog, 1 N.Y.3d at 198, 770 N.Y.S.2d 692, 802 N.E.2d 1090); accord Ted Is Back, 64 N.Y.2d at 726, 485 N.Y.S.2d 742, 475 N.E.2d 113; Bhanti, 260 A.D.2d at 335, 687 N.Y.S.2d 667. In this inquiry, as in the FLSA inquiry, it is not significant how the parties defined the employment relationship or how the worker identified herself on tax forms. See Sandrino v. Michaelson Assocs., LLC., No. 10 Civ. 7897(BSJ), 2012 WL 5851135 (S.D.N.Y. Nov. 19, 2012) (“The test for whether a person is deemed to be an independent contractor for purposes of New York Labor Law does not depend, however, on what the person has labeled themselves. Instead, the analysis is a question of fact which hinges on whether the employer exercises either control over the results produced or over the means used to achieve the results.”) (citation omitted); Hernandez v. Chefs Diet Delivery, LLC, 81 A.D.3d 596, 599, 915 N.Y.S.2d 623 (2d Dep’t 2011) (“While the manner in which the relationship is treated for income tax purposes is certainly a significant consideration, it is generally not singularly dispositive” (citing Gagen v. Kipany Prods., Ltd., 27 A.D.3d 1042, 1043, 812 N.Y.S.2d 689 (3d Dep’t 2006))). With these principles in mind, the Court now considers the dancers’ status under New York’s common law test, beginning with the five Bynog factors and turning then to the overarching issue of the degree of control exercised by Rick’s NY. Notwithstanding the separate NYLL inquiry, the Court is, however, mindful that “[t]here is general support for giving FLSA and the New York Labor Law consistent interpretations.” Topo v. Dhir, No. 01 Civ. 1088(PKC), 2004 WL 527051, at *3 (S.D.N.Y. Mar. 16, 2004); see also Jiao v. Shi Ya Chen, No. 03 Civ. 0165(DCF), 2007 WL 4944767, at *19, n. 12 (S.D.N.Y.2007) (collecting cases); Ansoumana v. Gristede’s Operating Corp., 255 F.Supp.2d 184, 189 (S.D.N.Y.2003). And there appears to have never been a case in which a worker was held to be an employee for purposes of the FLSA but not the NYLL (or vice versa). See Tr. 26, 44 (defendants’ and plaintiffs’ counsel acknowledging they know of no such cases). Finally, the Court notes that the New York State Department of Labor, applying the NYLL, recently concluded that exotic dancers working under similar circumstances had been misclassified as independent contractors and were, in fact, employees. See Double R. Entm’t, LLC v. Comm’r of Labor, No. PR 08-156 (N.Y. Indus. Bd. of Appeals June 11, 2011). Although this administrative decision is not precedential as to NYLL and does not bind the Court, its reasoning is thoughtful and persuasive. 1. Bynog Factors On the first of the five Bynog factors, Rick’s NY argues that the dancers worked at their convenience, citing evidence adduced in discovery that the dancers could choose the days on which they performed at the Club. See Def. 56.1 ¶¶ 77-104. As to the related fifth Bynog factor, Rick’s NY also asserts that there were no set schedules at the Club: Dancers sometimes performed once a week, once a month, or not at all during a month. According to Rick’s NY’s records, of those dancers who performed for a period of 6-12 months at Rick’s NY, approximately 19% had a gap of at least one month during which they did not perform; approximately 9% had a gap of two months; and more than 15% had a gap as large as six months. See Dkt. 422 (Morizadeh Decl.) ¶¶ 18-19, Ex. 3. Plaintiffs counter that Rick’s NY’s written rules stated that dancers were required to perform a minimum number of days per week. PI. Opp. Br. 9-10. The Club’s Guidelines are consistent with this. They state: “We have a Three Day Minimum Commitment Requirement.” Sis-trunk Dep. Ex. 12 ¶ 1 (emphasis in original). If dancers were unable to make that required schedule, they had to receive a manager’s approval. Id. Ex. 9 ¶ 27. Downplaying the Guidelines, Rick’s NY argues that the stated rule was precatory and often waived, and because the rule was often waived in practice, it is incorrect to claim that the Club controlled dancers’ schedules. This argument is of limited assistance to Rick’s NY. To the extent that the dancers did not show up to perform three days a week, Rick’s NY retained the discretion to discipline them. See PX 264; PI. 56.1 ¶ 230; Def. Resp. 56.1 ¶230 (5,897 fines that were imposed for “NO SHOW”; 227 for “LATE FOR SHIFT”). Defendants are correct that many fines for no-show dancers were reversed, but the reasons listed in the ClubTrax data for their reversal, see PX 268; PI. 56.1 ¶ 232; Def. Resp. 56.1 ¶ 232 (“reversing fines, hóusemom confirmed that she did call”; “remove fine was not supposed to be scheduled for that day”; “removed no show fee. called to cancel”), support plaintiffs’ claim that dancers were required to get permission for not appearing as required or scheduled. These prongs accordingly favor plaintiffs. The second, third, and fourth Bynog factors, on the other hand, tend to favor Rick’s NY: Dancers were not required to work exclusively at Rick’s, see Def. 56.1 ¶ 111; PI. Resp. 56.1 ¶ 111, and many performed at other nightclubs or held jobs elsewhere during the same time period that they worked at Rick’s NY, see SF ¶¶ 133-139. Dancers at Rick’s NY did not receive health, retirement, or similar benefits. See Def. 56.1 ¶62; PI. Resp. 56.1 ¶ 62. And, due to the very payroll practices at issues in this lawsuit, the dancers were never on the payroll at Rick’s NY. See Def. 56.1 ¶59; PI. Resp. 56.1 ¶59. However, these three factors, in context, merit modest weight. For the reasons explained in the course of the Court’s FLSA analysis, the second factor, that plaintiffs were free to take on other jobs, is of limited relevance under the NYLL. Many workers who are undeniably employees under NYLL, such as waiters or bartenders, are free to carry second jobs. The lack of fringe benefits or payroll inclusion is likewise unimportant.. Simply put, dancers at the Club did not receive benefits or W-2s because Rick’s NY treated them as independent contractors. To assign this factor much weight would effectively allow any employer to control, under New York law, a worker’s status simply by labeling her an independent contractor and denying her employee benefits. But employee status under the NYLL turns on substance, not form. See In re Hertz, 2 N.Y.3d at 735, 778 N.Y.S.2d 743, 811 N.E.2d 5 (“An employer-employee relationship exists when the evidence demonstrates that the employer exercises control over the results produced by [plaintiff] or the means used to achieve the results.”). In this respect, a decision by the Appellate Division finding exotic dancers to be employees under NYLL for unemployment insuran