Happy Monday, dear readers!
This morning, as your humble blogger stared admiringly into the mirror (“you’re more handsome. No, YOU’RE more handsome!”) he realized it was time for a haircut. But… who would cut this glorious hair? Would it be barbershop employee… or an independent contractor?
In the recent writ denied case of Martinez v. Chelo’s Hair Fashion, the WCJ and WCAB both had found that applicant hairdresser was an employee rather than an independent contractor. Of particular importance were the facts that the defendant-employer “exerted the right to control the manner and means in which applicant accomplished her job by setting the price, receiving 50% of the payments, deciding when to authorize discounts, paying all the bills, and not giving applicant a IRS Form 1099. She also supplied instrumentalities in the form of shampoo, towels, and hair products.”
The alleged employer did not testify, but on cross-examination, the applicant testified to providing her own tools, which she must maintain and, if necessary, replace. She also testified to having a cosmetology license, having spent some time working at another salon at the same time as Chelo’s, and to paying city and business taxes out of her earnings. She also got to set her own departure time, although she had to open the shop in the mornings.
The WCJ found there to be an employment relationship, and the WCAB affirmed. Initially, the WCAB declined to address the factors outlined in Borello, on the grounds that defendant did not offer any evidence to rebut the presumption of employment under Labor Code section 3351. But, even under the Borello the WCAB would find employment on the grounds discussed above.
Interestingly enough, your humble blogger recalls a similar matter – that of Aparicio v. WCAB, in which the WCAB found a hairstylist to be an independent contractor and the Court of Appeal denied review. There, applicant kept a portion of the money paid to her by her clients in lieu of paying rent or earning hourly wages. She was provided with a place to work and some supplies. In Aparicio, applicant did not have a cosmetology license, but Ms. Martinez did.
The Aparicio and Martinez arrangements seem pretty similar, but the commissioners provided very different results. What does a salon need to do to ensure that its hairstylists are independent contractors and not employees?