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?
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.
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
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.
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.
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