Are Courtesans Exempt?

I am currently reading “The Story of the Chevalier des Grieux and Manon Lescaut,” a 1731 novel by Antoine Francois Prevost.  The book tells the story of two young lovers who struggle to maintain their relationship and preferred lifestyle of luxury in 18th century Paris and, later in the novel, Louisiana.  While still in Paris, Manon, the beautiful and superficial young woman with whom the hero is infatuated, offers her companionship to older, wealthier gentlemen in exchange for the financial support necessary to indulge in the extravagance she craves. Spoiler alert: it does not go well for Manon.  Without divulging the tragic ending, today I would like to consider Manon’s situation while in Paris and the rights she may or may not have been afforded had she been covered by the Fair Labor Standards Act.

As a preliminary note, it cannot be emphasized enough that Manon would have had absolutely no protection under the Fair Labor Standards Act.  The book was published more than two hundred years before the Fair Labor Standards Act became law.  Additionally, the section of the book being discussed herein is set in Paris, France, and the Fair Labor Standards Act is a United States federal law that does not apply to Parisian employees and employers.  Finally, the work being done by Manon was not legal (and Manon does end up incarcerated as a result of her lawbreaking actions.)  Some people say that “crime doesn’t pay,” which may or may not be true depending on the crime and the criminal, but it’s likely true that crime doesn’t pay overtime, as criminal activity is not covered by the protections of the Fair Labor Standards Act.

So, let’s suspend our disbelief- by a lot- and go back to early 18th century Paris, where Manon Lescaut is breaking the heart of the young Chevalier des Grieux by lavishing her attentions on aristocratic patrons.  The first question to consider is whether Manon would be an employee or an independent contractor as a matter of law.  In general, an “employee” is financially dependent on an employer as a matter of economic reality, and an “independent contractor” is considered to be in business for herself. There are a number of factors that courts and government agencies, such as the Internal Revenue Service, consider when making a determination as to independent contractor classification.  The most important questions are the degree of control versus independence, the nature of the relationship between the parties, and the financial aspects.  The more control a potential employer has over the person’s work, the more likely it is that the person is an employee.  When a company tells someone when and how to do the work, as opposed to simply dictating the desired result, that level of control leans in favor of employment.  For Manon, the wealthy patrons certainly have considerable control over certain aspects of her work.  Patrons could direct Manon to go with them to their country estates and to social events, setting the location and hours of her work, and could presumably specify what services they would like performed by Manon.  As to the nature of the relationship, this would vary drastically between patrons.  Generally, the longer a relationship lasts and the more exclusive Manon’s work is for a particular patron at any given time, the more likely it is that Manon is an employee.  However, the fact that Manon’s work is most likely not an integral part of the putative employer’s business strongly cuts against a presumption of an employment relationship.

If Manon were found to be an employee, would she be entitled to overtime or would she be exempt from the overtime provisions of the Fair Labor Standards Act?  The exemption that is most likely to apply to Manon’s work is the creative professional exemption, which applies to employees who have the primary job duty of performing work that requires invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.  Manon’s work as a courtesan could easily be compared to acting, which has been found to be covered by the creative exemption.

It is my belief that Manon would not be entitled to overtime.  I believe she would not be considered to be an employee, and as an independent contractor she would have no Fair Labor Standards Act protection.  Furthermore, if she were found to be an employee, she would be covered by the creative professional exemption based on the nature of her work.

If you are a 18th-century French courtesan, or anyone else who has a question about the Fair Labor Standards Act, contact Gold Star Law for help.