People often wonder: how does California independent contractor law affect barbers and hair stylists? Are hair salons at risk of lawsuits by California independent contractors?
Under the new test for independent contractor vs employee status in California, it is illegal to classify a barber or hair stylist as an “independent contractor” unless the salon can prove that: (1) the hair stylist is free the hair salon’s control; (2) the job of cutting or styling hair falls outside the salon’s usual business; and (3) the hair stylist typically operates their own business, separate from the salon.
A hair salon, such as Supercuts or Great Clips, would have to prove all three elements are true under California misclassification law. It would be difficult for a hair parlor to argue that it is not “in the business” of cutting or styling hair. This means that many California hair stylists and barbers may be misclassified as independent contractors by the salons where they work.
Hair stylists in California who are misclassified may be entitled to penalties of up to $25,000 per worker who the salon misclassified.
Although the California Supreme Court has not specifically addressed whether the new or old test applies to stylists and barbers, there is a specific regulation in California restating the old rule for independent contractor vs. employee status. The old rule is just the first part of the new three-part test.
The old rule, under the California Code of Regulations section 4302-12, for determining the employment status of a barber or other professional licensed by the Bureau of Barbering and Cosmetology, says that:
the most important factor is the right of the [barber] to control the manner and means of accomplishing [the job].
The regulation, established by the California labor and employment department, says that courts should consider the following factors to determine whether the barber or hair stylist has control over the job:
| Factor to Consider | Factor Weighs in Favor of Barber/Stylist Being “Employee” | Factor Weighs in Favor of Barber/Stylist Being “Independent Contractor” | Relative Weight Given To This Factor |
| (1) Prices, Hours, & Other Policies | Hair salon sets the prices, business hours, work schedules, dress code, policy for refunds or resolving customer complaints, and maintaining a selection of hair products to sell. | Barber or stylist sets their own hours, prices, directly collects payment from their customers, directly schedules appointments with customers, and resolves customer complaints about their own services. | The California labor department says this factor “carries great weight.” |
| (2) Supervision on the Job | The salon oversees the barber or stylist’s job performance; assigns clean-up activities; and determines which customers get assigned to which barber or stylist. | The barber or stylist is not subject to performance reviews or required cleanup activities. | The California labor department says this factor carries “great weight.” |
| (3) Training | The salon requires the barber to attend classes or seminars. | Trainings are made available, but the hair stylist is not required to attend. | This factor carries “medium” weight. |
| (4) Meetings | The hair stylist is required to attend staff meetings. | The barber does not have to attend regular meetings. | This factor is of “medium” importance. |
| (5) Work Schedules | The hair salon sets the barber’s work shift, schedules their appointments, and requires a full-time effort (such as 40 hours per week of work). | The hair stylist is free to set their own hours, refuse appointments (or refer them to another stylist), and can choose to work less than a 40-hour week. | Medium to high weight. |
| (6) Location of Work | The barber is not allowed to work at other salons. The salon holds the lease on the entire space and owns all the equipment. | The hair stylist is free to provide services at other locations, subleases their chair and can sublet it to another stylist, and brings their own scissors, clippers, and other supplies. | Medium to high weight. |
| (7) Written Contract | The agreement between the salon and stylist requires that the barber attempt to sell the salon’s products. The salon gets a flat amount for each hair cut the barber performs. And the contract provides a rental rate for the stylist’s chair, and the salon never assigns the stylist to work at a different chair, nor uses the stylists chair when they aren’t there. | The stylist is not required to sell the salon’s hair or beauty products. The contract gives the salon a percentage of money from each hair cut, rather than a flat rate. | Medium weight. |
| (8) Termination | The contract only provides for the salon terminating the barber. The contract says that the barber can be terminated without cause, which resembles an at-will employment relationship. | Either the stylist or the salon can terminate the relationship. | This factor carries “great weight.” |
| (9) Engagement in a Distinct Business | The hair stylist exclusively does business under the brand name of the salon. | The barber separately advertises their services, and does business under their own name, rather than the salon’s brand. | Great weight. |
| (10) Instrumentalities and Tools | The salon provides all the equipment, such as clippers, shampoos, conditioners, hair dyes, rollers, and towels. | The barber keeps and maintains his or her own major equipment. If using the salon’s products, such as shampoo or hair dye, the stylist pays the salon for the products they use. | Medium to great weight. |
| (11) Belief of the Parties | The salon and barber believe that they are in an employment relationship. | The salon and stylist believe that the hair stylist is an independent contractor. | The California labor department stress that the belief of the parties about their status is “given low weight.” |
| (12) Part of Regular Business | The salon is regularly engaged in the business of cutting and styling hair. | The salon is owned by a mall or other retail space provider, who leases individual chairs to barbers. | Medium weight. |
Of course, under the new test for independent contractor misclassification, two of the above factors are elevated: (a) whether the work is within the salon’s regular business, and (b) whether the worker operates a separate business, such as by advertising separately from the salon.
Lujan v. Minagar
In this California court case, the California court of appeals concluded that there was “more than enough” evidence to show that a hair stylist should have been classified as an employee, not an independent contractor. The stylist had testified that:
(quote) she had worked at the salon for one year; [the salon] made up her work schedule; she was paid weekly, based on a percentage of the money received for her services and product sales; she was given a workstation and paid no rent for it; she did not pay for any of the beauty supplies she used; all appointments were booked through the salon’s front desk; the customers paid the salon, not her; and she was required to use and pay the salon’s shampoo girl. It is also beyond dispute that [the plaintiff’s] services as a hair stylist were a regular part of [the salon]’s business.
An employment-law litigator with over 20 years’ experience, Steven Tindall is well-acquainted with navigating the ins-and-outs of independent-contractor misclassification lawsuits. His largest recovery in a single employment case is $29 million.
Prior to joining us at Gibbs Law Group LLP, Linda Lam worked at a national employment law firm, where she represented workers in lawsuits to recover unpaid wages and benefits.
Steve has prosecuted a variety of complex employment cases involving misclassification of independent contractors. He is fluent in English and Spanish.
Gibbs Law Group LLP is consistently ranked on U.S. News’ list of “Best Law Firms.”
The attorneys in our California employment law practice have all be selected as 2018 Northern California Super Lawyers or Risings Stars.
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