FLSA Question

LindaS · December 2007

Here is the question I have been asked of by our Manufacturing Director regarding his wife's business...

Business is a small hair salon/spa in WI. Business owner "hires" an individual to perform anesthesiologist services at the salon. Individual does not possess the state certification and needs hours worked before being eligible for her state boards. Individual provides all necessary equipment. Individual selects her own hours, sets up her own LLC and hands out business cards with the business name on it, no connection to the salon. The business owner and other staff schedule appointments. Individual is paid through the business payroll and is covered under WC for the salon. Verbal agreement is the this individual will be paid commission only - nothing in writing.

Individual has now filed a wage/hour complaint stating she was actually an employee and should receive minimum wage for all hours worked.

Does she have a valid claim?

joannie · December 2007

I think she may. Similar situation locally with a spa and their masseuses. Since the masseuses did not set their own appointments, collect their own fees, were paid by check through the business and were covered by the business' workers' comp, they were considered employees, not independant contractors.

You might want to suggest the salon owner talk to a good labor law attorney. The local salon had some pretty hefty financial penalties before they got everything settled.

cnghr · December 2007

This is not an answer to your question, but I just wondered if I'm missing something here...do hair salons/spas normally have anesthesiologists on staff?

lrobb · December 2007

I believe the term is esthiologist. They do facials, spa treatments, etc. Requires special schooling and passage of state licensure

cnghr · December 2007

I was being a bit facetious when I asked about the term "anesthesiologist"...I've heard that some spa and salon treatments can be painful (waxing, etc.) but never that it would actually require sedation! The term the OP was actually looking for was aesthetician.

ritaanz · December 2007

Did this individual submit an invoice for work performed? Or, did the business calculate the commission and then pay on that?

LindaS · December 2007

I believe the business calculated the commission and paid on that.

ritaanz · December 2007

Yep, sounds like this person has a right to at least minimum wage. There are all the obvious signs of an employee and not of an independent contractor. The owner should get some legal advise ASAP.

ritaanz · December 2007

A comment, If I may.... This person needed a certain number of worked hours to qualify for state certification. The business owner provided the ideal climate for this person to attain the necessary working hours and experience.

Now the candidate files a complaint with wage and hour? If the owner paid her minimum wage only, would she have made as much money?

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