I am a hairstylist in California and more recently have realized that I am being misclassified as an
independent contractor. I will sort out the misclassification situation after I quit, but before I leave I would like to approach my boss because I think I am also illegally being charged for things I shouldn't be charged for. When I started working there we had a verbal agreement that I would pay for my own backbar (shampoo and conditioner) and credit card transactions, but we never agreed on a rate. Upon going through my paychecks I have figured out that a few months in, she doubled the amount that she is charging me so now I am paying $2 per client for backbar and 5% for credit card transactions, which is outrageous! This is typical in salons, normally they call it a "surcharge". In my previous salon where I was a true employee they removed 10% from every one of my paychecks. Since I have realized the misclassification, I have been trying to find any information I can regarding my rights and recently stumbled upon California Labor Code Section 226.8. It would seem that my boss would not be allowed to charge me for any expenses. Is this true and do I have to prove that she has misclassified me before I try to get the money back? Do I have the right to ask her for a reimbursement? Was my previous salon, where I was an employee allowed to charge me the surcharge? Thank you!
Separating your fight on the IC vs. employee issue from your fight about the surcharge issue might be a big mistake. You may well make admissions in the surcharge action, and there may well be determinations made in the surcharge action that will change the course of the mischaracterization litigation. Before you make such a decision, you should locate and consult with the attorney with whom you are going to work to bring the mischaracterization claim.
Keep in mind that the issue is all but decided if you win on the mischaracterization issue.
If you lose the mischaracterization issue, you may still have a legal right to claim overcharge if your agreement was otherwise. However, that should be an alternative theory to the mischaracterization theory.
Good luck to you.
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You claim you are being " illegally" charged. It would not be illegal but violation of an agreement. I agree with my colleague about dealing with your mischaracterization.
If you are an independent contractor then as long as charges were agreed upon and reasonable then they can charge you..the verbal agreement is an enforceable contract
. Since the typical discount rate for credit cards is about 3%, the cost of processing the card, maintaing the card machine, giving you the money etc... If I were looking at this 5% is probably not unreasonable and is the cost of doing credit card business.
Buy your own products and tell the salon operator you are not using the back bar. What we don't know is how much you are paying in booth rental or why you are an employee vs independent contractor. If you're not paying booth rental and you are truly an independent contractor the $2.00 per customer may not be an unreasonable charge.
It sounds like this is not the first time you have had these issues. You need to be clear on your relationship going in to these work relationships. To be blunt you can start your own salon and assume all those risks that come with it, including rent, business licenses, utility payments, insurance, supplies, payrolls, merchant accounts, accounting software, advertising, signage etc or pay someone else who is taking all those risks a cut of your gross income.
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