Tattoo artist's ability to come and go negates employee status

A claimant seeking benefits under the Virginia WCA has the burden of establishing that he is an employee as that term is defined by statute.

Case name: Creative Designs Tattooing Assocs., Inc. v. Estate of Parrish, et al., Nos. 1431-09-2, 1925-09-2 (Va. Ct. App. 05/25/10).

Ruling: The Virginia Court of Appeals reversed the Workers' Compensation Commission's finding that a tattoo artist was an employee of the employer at the time of his death. As a result, his estate was not entitled to death benefits under the Workers' Compensation Act.

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What it means: A claimant seeking benefits under the Virginia WCA has the burden of establishing that he is an employee as that term is defined by statute. In determining whether to extend employee status, courts examine several factors, including who has the power to control and direct the employee's work; whether the employer or the employee supplies the tools to perform the work; how the employee is paid; and whether deductions are taken from his compensation.

Summary: A tattoo artist was shot and killed during a robbery at a tattoo parlor owned by Creative Designs, a corporation. At the time of the incident, the artist was in the parlor's lobby. He had an arrangement with Creative Designs to use one of its workstations in return for which Creative Designs received 45 percent of his tattoo proceeds. Creative Designs did not dictate the hours the artist worked and provided him with a set of keys so that he could come and go as his schedule dictated. The WCC found that the artist was an employee, thereby allowing death benefits to be paid to his estate. After examining numerous factors, the Court of Appeals reversed, concluding that he was an independent contractor.

Although the corporation had to approve of an artist using its space and negotiated its percentage of the proceeds, once those tasks were completed, the artist was free to set his own hours and negotiate the tattoo prices directly with his clients. Further, he supplied all of his own tools and supplies and was not paid wages or salary by the corporation.

In a lengthy dissent, one judge noted that the artist acquired managerial duties as he continued his employment with Creative Designs. He was essentially "promoted" from an unpaid apprentice to an employee with several responsibilities. In addition, the principal owner of the business retained control over the tattoo artists and had the power to fire an artist if necessary.

Read more at the WorkersComp Forum homepage.

August 16, 2010

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