A barber worked at a hair salon along with the salon's owner and four other stylists. The owner provided the stylists with shampoo, hairspray, and hair-coloring products. Stylists provided their own equipment, including combs, brushes, clippers, hair dryers, and aprons. The owner did not provide the stylists with training or uniforms.
Stylists agreed to pay the owner 50 percent of any money they received from cutting and styling hair at the salon. The stylists were each given a key to the salon, and the owner established business hours. The owner did not pay taxes on behalf of the stylists or provide them with insurance or fringe benefits.
The stylists had their own clients, made their own appointments, and set their own prices and working hours. The stylists were responsible for obtaining a substitute if they could not come in to work.
The barber had been called in to work to substitute for another stylist. During the barber's shift, the salon was robbed, and he was shot, resulting in his death.
The barber's widow filed a claim for workers' compensation benefits. An administrative law judge found that the barber was not an employee of the salon at the time of his death, so the widow was not entitled to benefits.
The Labor and Industrial Relations Commission adopted the ALJ's decision. The widow appealed, arguing that the barber was a statutory employee of the salon.
Was the commission correct in denying benefits to the barber's widow?
A. No. The barber's work was performed in the usual course of the salon's business.
B. Yes. The salon was not a statutory employer of the barber because it merely provided him with the facilities he needed to conduct his own business operation in the manner he chose.
C. No. The salon had a financial interest in the barber's activities, which made it a statutory employer.
How the court ruled: B. The Missouri Court of Appeals held that the barber was not a statutory employee of the salon, and his widow was not entitled to compensation. Brito-Pacheco v. Tina's Hair Salon, No. WC75062 (Mo. Ct. App. 04/30/13).
The court explained that where an alleged statutory employer merely provides another entity with the facilities in which to engage in revenue-generating activity, the entity providing the facilities is not a statutory employer. Here, the salon simply provided the barber with the facility he needed in exchange for a share of his revenue. The barber developed his own clientele and used his own equipment to cut hair.
A is incorrect. The court concluded that the barber's work was not performed in the usual course of the salon's business. When he was cutting hair, he was not doing the work of the salon but was doing his own work.
C is incorrect. Although the salon had a financial interest in the barber's activities and would have made arrangements to have another stylist operate out of the salon if the barber stopped working there, the court explained that was not the test to determine whether the salon was a statutory employer. The court also pointed out that although the owner was a hair stylist, the barber did not assist her with her clients.
Editor's note: This feature is not intended as instructional material or to replace legal advice.
July 19, 2013
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