The Latest BlueOregon post on minimum wage is titled “Hijacking Tips.”

My comment there goes like this:

The exemption from the minimum wage for employees is conceptually the same as treating the employee as an independent contractor. It is as naked as charging a nude dancer a stage fee for the opportunity to bring in customers to the house so that, in some circumstances, the gamblers will get giddy on alcohol and girls and then drop their cash into poker machines.

Now does anyone have sympathy for the girl that will strip in a bar that has video poker machines? What if that girl gets 15 bucks (before her stage fee and before, in some cases, paying a driver) because she got a bad shift while the patrons have crammed in perhaps 500 to a 1000 dollars into the video poker machines (net after payouts) during that same time period.

Why not demand then that any worker that gets tips, either for dancing or for merely smiling, should be treated as an independent contractor? That is the essence of the distinction based on tips, is it not? Once the tips no-tips break is made then, conceptually, there is no limit to the scope of differentiation to be made by a future legislature; perhaps saying that a tipped employee is an independent contractor from whom a fee can be charged. Do not be underestimate the conceptual significance by the distraction of the meager few cents difference in the current proposed minimum wage bills between tipped and non-tipped employee. As we all know, from so many past acts of the legislature, once they create a distinct economic class they can then can go hog wild and treat them even more differently for any damned reason they like. All the court looks for is any ad hoc rational permissible reason for the class distinction then they put on full blinders to all manner of other differential treatment.

(For example) The savings of a public employee can be topped off with a shower of legislative gifts via buy in right to years of credit for work years never performed, whatever, to adjust the final average salary calculation upwards; disproportionately more profitably for a tier-one employee than for a tier-thee employee. There is no rhyme or reason other than political heft of the advocate, because the courts plead ignorance to proper recognition of the constitutional equal privileges and immunities clause in the context of economic regulation. Since when is a gift not a gift, come on folks?

Tips are just one factor to consider when distinguishing between an independent contractor and an employee. Slip in a poison pill into this bill by saying that strippers (and others), while retaining the right to be considered independent contractors, must nevertheless be treated no worse off for hours appearing than any other tipped employee for purposes of the minimum wage law. Conceptually, make the house have to cough up a minimum tip to the independent contractor stripper, rather than charge a stage fee, for the opportunity to provide a venue for nude attractions at places that offer video poker machines. Now that ought to slice off the moralist religious right folks that are lined up with the ORA. They might thereby have to acknowledge that there be girls who go naked a few feet away from the video poker machines and draw in customers but get no respect.

To summarize, extend the minimum wage protections to tipped dancers without enhancing the bar's right to control the dancer (key to the the independent contractor determination) but only for bars that offer video poker. It just does not seem fair for the OEA to claim any of the video poker profits that are significantly enhanced by the presence of naked ladies that often make less than minimum wage. You be the moral judge, not of the nakedness but of the economic morality of the legislative allocation of cash from video poker gambling houses where the naked ladies are important but get no recognition by the legislature. Heaven forbid, the religious right might have to acknowledge that there be naked ladies prancing nearby so many video poker terminals, often competing for the same wad of cash from a customer. If you want to make some bar owners livid, now this will do it. Heck it might even minimize some of the incentive of a girl that is predisposed to dance to not cross over to engage in side jobs negotiated right next to the video poker machines. Heck, it might make some bars choose between dancers or video poker, but not both. This ain't, of course, about regulating dancing, just minimum wage where there are tips and video poker, mind you and thus will survive legal attack from all sides.