I am a commissioned hair stylist who recently took a job in a salon. I am paid only commission and there are days when I have no clients or make below what I would if paid minimum wage for my hours. I am answering phones and cleaning the salon but on some days do not make any salary at all for those hours. Is my employer obligated, under the California Labor Law to guarantee a salary of at least minimum wage for hours worked?
Employment / Labor Attorney
If you are an employee and not a legitimately characterized independent contractor, then yes, you must earn the minimum wage for every hour you are working. Although many hair stylists are mischaracterized as independent contractors, there are some situations where it would be appropriate to characterize a stylist as an independent contractor.
Your most prudent move would be to consult with an employment law attorney, share all of the facts and circumstances with him or her, and get some specific advice about your options. There are many.
Good luck to you.
This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.
Employment / Labor Attorney
Yes. From what you have described, you are an employee and not an independent contractor. As such, CA law requires that you be paid at least $8.00 per hour.
Ms. Karila and Mr. Pedersen are almost certainly right (they usually are), but it's hard to know for sure without discussing your full job duties with you. California looks at a number of factors, the primary being control. If the employer tells you what to do, when you have to be there, and you are generally answerable to the employer, then you will most likely be deemed an employee and not a contractor. In that case, you would be entitled to at least minimum wage for every hour worked.
There are some terrific employment attorneys available, but you need look no further than Ms. Karila and Mr. Pedersen, either of whom could handle your matter well. I encourage you to give them a call to have them analyze your case.
Good luck with your legal matter.
Craig T. Byrnes
Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.
I don't disagree with the responses that have been provided here by three skilled and experienced employment attorneys. You may in fact be improperly classified as a contractor and be an employee under the law. But it may be useful to look at this matter from the point of view of the eventual outcome before you commit to pursuing a complaint on the issue.
Let's assume for analysis purposes that you are in fact properly classified as an employee, not as an independent contractor. Once that has been determined and ironed out with appropriate corrections consistent with the law, it is almost inevitable that you will not be working there any longer. Your "employer," if that's what the business owner is, did not intend or choose to acquire an employee. And getting the contractor issue straightened out and corrected will not cause your employer to decide to carry you as an unintended employee, and the law will not compel or force your employer to live with that unintended result. Instead, your employer will apply the lessons learned in this situation to simply acquire an independent contractor -- presumably correctly and in conformance with the law.
The costs and economic burdens to the business of an employee -- as distinct from the costs and burdens to the employer of an independent contractor --are simply too different to indulge any expectation that the employer will keep you as an employee when the expectation was that you would be a contractor.
So, if you like the people, the place, the work, the opportunities, etc., it may make more sense for you and your employer to FIX this situation rather than for you to pursue a legal complaint. Assuming that you are presently functioning as an employee rather than as a contractor, a skilled and experienced employment attorney can assist you and your employer in effectively modifying your working circumstances so that you can be indeed properly classified as an independent contractor instead of an employee and can perform in that capacity. Is that a better result than a legal complaint? Only you can say, but it is an option that you certainly should consider, especially if you intend to continue to offer hair-styling services in your location or area over the long-term.
There is no point to trying to force an employer to carry you as an employee if the employer does not see that as an affordable choice for the business. That is not a result you can compel. Your choice, then, in my view, is whether you want to get on a sound legal footing as an independent contractor and continue to provide your services there or whether you want to make your claim and move on to another salon.
The law of contractor-employee will not make your employer a hostage to an erroneous classification. The only way to become an employee is to get knowingly hired as one.
No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. Send me an email to schedule a paid Consultation for that kind of information, direction, and assistance. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.
Divorce / Separation Lawyer
I agree with attorney Kristine Karila. In addition, it sounds as if you are being treated as an employee and obligated to perform quite a number of functions, and not just within your own duty station waiting for your clients to show up for you to perform services for each of your clients. On this basis, I agree with Ms. Karila, and it sounds as if you cannot be characterized as anything other than an employee. In this regard, you would have an entitlement to hourly wages, breaks, and lunch period. If you have a written contract with the shop owner, you need to take a good close look at the contract or have an employment attorney review the same, to determine your rights.
If you have found this information helpful, please let the attorney know by marking best answer. Thank you. This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client relationship by providing said information to you on this site. Nothing contained herein is intended to constitute, offer, induce, promise, or contract of any kind. The content provided is presented as a courtesy to be used only for informational purposes and is not represented to be error free. The Law Offices of John N. Kitta makes no representations or warranties of any kind with respect to its answer to inquiries, and such representations and warranties are being expressly disclaimed. Given limited facts, we are attempting to share relevant information concerning this area of the law as a public service.