February 2014

By: Nancy E. Joerg, Esq.

Behold! A winning independent contractor case! A beauty salon in Maryland was sued by a nail technician under the Fair Labor Standards Act–the Federal wage and hour law. In a December 2013 decision, the US District Court in Maryland decided, to the great pleasure of the beauty salon, that the nail technician was not an employee of the beauty salon for purposes of the Fair Labor Standards Act (FLSA). Viar-Robinson v. Dudley Beauty Salon, 2013 U.S. Dist. LEXIS 171383 (D. Md. Dec. 4, 2013)

The strong facts of this case are, of course, what helped the District Court to find that the nail technician was not the employee of the beauty salon. The federal Court used the six factor “economic reality test.” Some of the key facts included the following:

• The nail technician was licensed;
• The nail technician was paid by the customer (and not by the beauty salon);
• The nail technician gave the beauty salon money for a facility/rental charge;
• The nail technician set her own prices, set her own hours, and actually did her own advertising (huge factor in favor of independent contractor status!).

The Court found it particularly significant that the nail technician was not actually supervised by anyone (and therefore was not told what work to do). The Court found that the salon exercised “virtually no control over the technician’s client base.”

The Court also found in favor of independent contractor status in this case because the nail technician actually decided by herself what to charge for her services (even when the owner of the beauty salon disagreed with her as to what she was charging!).

One of the most important facts in this case pointing to independent contractor status was that the nail technician purchased all of her own equipment and supplies.

The nail technician was licensed by the state of Maryland. She had to pay license renewal fees. She also had to pay for and complete continuing education courses for nail technicians.

Another very instrumental fact in the outcome of this court decision was that the beauty salon primarily provided service for hair. The nail services were simply added to accommodate patrons of the salon. (The beauty salon did not advertise nail services – the nail technician did).

There are many cases where the salon/spa loses on the issue of independent contractor status of its technicians. Therefore, it is very encouraging to see that, under certain key facts, the outcome can be victorious for the defendant company.

Practice tip: If you are a company that uses the services of independent contractors, make sure the independent contractors advertise in their own business name. Put a copy of their ad in their independent contractor file. You should have an independent contractor file for each independent contractor that you use. Fill those files with documentation proving that the independent contractors are self-employed business entities.

Questions? Contact Managing Shareholder Nancy E. Joerg of Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.