Is a hairdresser considered an employee of a nursing home?

A hairdresser works as an independent contractor with a nursing home. When she's injured, does the nursing home have to pay workers' comp?

By Christina Lumbreras

A hairdresser worked one day each week at a nursing home, providing hairstyling services to residents. The home gave her holiday decorations for its beauty salon. While standing on a chair to hang the decorations, the hairdresser fell and fractured her wrist.

The home provided the chairs, hairdryers, a sink and a cabinet for supplies. The hairdresser furnished some of her own supplies, such as hair dyes and scissors that were only sold to licensed hairdressers. She used medicated shampoo provided by nursing staff or shampoo she purchased from cosmetology suppliers.

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The hairdresser was the only hairdresser in the nursing home on the days she worked. Customers scheduled their appointments with the hairdresser through the home. The home required the hairdresser to receive immunizations required of other workers. The home required her to have personal liability insurance, but she was never asked to submit a certificate of workers' compensation insurance. The home set the fee schedule for the hairdresser's services. It deducted 15 percent of the receipts and paid the hairdresser the remaining 85 percent. The home reported the hairdresser's income as an independent contractor. The home terminated the hairdresser after her injury.

The hairdresser sought workers' compensation benefits. The home contested the claim on the ground that she was an independent contractor and not an employee. The compensation judge found the hairdresser was an employee who suffered a compensable injury. The home appealed.

Was the compensation judge correct in finding the hairdresser was an employee?

A. No. The home required her to maintain liability insurance, provide some of her own equipment for working, and considered her an independent contractor.

B. Yes. Although the hairdresser was an employee of the home, she was not entitled to compensation for her injury because she was not performing her hairdressing duties at the time she was injured.

C. Yes. The hairdresser showed a substantial economic dependence on the home because she relied on the home for customers.

How the court ruled: C. The New Jersey Superior Court, Appellate Division held that the hairdresser was an employee and was entitled to benefits. Johantgen v. Brandywine Senior Care Center, No. A-4883-09T1 (N.J. Super. Ct. App. Div. 10/31/11, unpublished).

The court said that under the "relative nature of the work test," a worker must show a "substantial economic dependence" on the employer. Here, the hairdresser relied on the home for making the appointments, and the home supplied all of her customers. She was not free to select her own customers and had little control over the timing of her work. The home also provided all of the essential hardware to run the salon. Her compensation was based on a percentage of fees paid by the customers. Also, the home maintained the power to terminate her.

A is incorrect. The court explained that these factors are not dispositive of whether the hairdresser was an employee.

B is incorrect. The court explained that decorating the salon for the holidays was an incidental, but not required, service for the home.

Editor's note: This feature is not intended as instructional material or to replace legal advice.

January 5, 2012

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