Defending Industry From Delicensure
There is a well-financed and coordinated campaign to directly undermine occupational licensing in all 50 states — funding think tanks, foundations, lobbyists and special interest groups.
Their work successfully reached President Obama, resulting in a 2015 Presidential report on the subject, and they have now inspired President Trump, who recently highlighted Governors who’ve been chipping away at their state licensing scopes of practice.
So this movement is for real and coming to every state capital, already landing in my state legislature. But like an experienced Golden State surfer dude, we plan on adroitly riding this wave, steering our own course, rather than be overwhelmed by the crashing current of those who don’t have a stake in our industry.
This column will share some of the proactive, policy recommendations we are sharing with our state policymakers, in the hope of positively directing them toward sensible reforms that elevate not decimate the professionalism of those making an honest living in this vibrant industry. It is based on the old adage: the best defense is a good offense. We welcome the feedback of all California beauty industry stakeholders in these important policy deliberations that could set the course of this industry for generations to come.
Here is a summary of some of our major policy proposals, followed by more detailed explanation of each:
Licensure Pathways: Protect all pathways to licensure, including out-of-state licensure by endorsement, apprenticeships, and private and public postsecondary institutions.
Externships: Dramatically expand this student-worker program and authorize salons to pay these students for their service in salons.
Competency Education: Provide schools the option to move toward competency-based education instead of only clock-hour credit.
Scope of Practice: Do not chip away at current licensing scopes of practice, but instead, as industry demand warrants, establish streamlined sub-licenses for future licensees who only want to do hair or some other narrow service that negates the need for a full-blown Cosmetology license.
Booth Rental: Using the momentum of AB 5’s passage here in California, establish a booth rental permit to inform consumers, distinguish business entities, and raise the professionalism of independent contractors.
Licensure Purpose: BBC licenses are intended to (a) protect consumers; (b) maintain professional industry standards; and (c) inform and protect workers’ rights. Protect these vital functions.
State Board Structure: We believe the current structure of our State Board of Barbering & Cosmetology (“BBC”) should be preserved without a host of insignificant or distracting statutory mandates.
For policymakers concerned about unreasonable barriers to entry into our industry, we like to remind them that approximately 600,000 California residents currently hold a California State Board of Barbering & Cosmetology issued license. This represents over 2% of every adult living in the Golden State!
Any effort to address perceived, unreasonable barriers to entry seem like solutions in search of a problem — that doesn’t exist!
This is because our state offers several pathways to licensure.
For example, California has the most welcoming state-to-state reciprocity of all 50 states. In fact it’s not even true “reciprocity” (which implies our state will accept your license only if your state accepts ours). We have “licensure by endorsement”, which means California will accept an out-of-state license even if that foreign state doesn’t accept ours.
If an out-of-state licensee has worked 3 out of the past 5 years with a clean history in their state of origin and want to come to the Golden State, they merely have to fill out an application, pay the $50 filing fee and swear to their experience and BOOM! they’ll receive a California State Board of Barbering & Cosmetology license in the mail within a couple of weeks.
We also have very liberal apprenticeships, which allow an individual to begin “earning while they’re learning” after only 39 hours of formal instruction by a program sponsor.
However, only a small percentage of licensees working in California salons/barbershops do so as the result of state-to-state reciprocity or apprenticeship. The single largest pipeline of our future employees/booth renters are beauty colleges, and in particular private postsecondary institutions.
Any fraudulent school should be shut down; any poor school reformed. But our salon employers rely most heavily upon these institutions for the vast majority of their new hires, so any effort to undermine these invaluable pipelines must be vigorously opposed.
The PBFC values all existing pathways to licensure — including Community Colleges, for-profit trade schools, apprenticeships and licensure by endorsement, as we view each as a viable option for the myriad of diverse individuals seeking a career in our field.
Under current law — which our organization’s founders sponsored — students who take the necessary level of education can qualify to become salon “Externs.” However, to get that original law passed through the Legislature, the bill was amended to substantially limit the program’s reach.
So, for example, a student must complete a minimum of 60% of their clock-hour schooling (for Cosmo students that’s 900 hours) before they can qualify to become an Extern, and then current law only allows them to work in a salon for a maximum of 8 hours/week. In addition the law caps the total clock-hour credit for such real-world experience to 10% of their total schooling hours (i.e., 160 hours). And these Externs are prevented from being paid while working in a salon setting.
We believe this program should be dramatically expanded, using a 25/25/25 standard, namely: allow a student to become a salon Extern after completing 25% of their schooling hours (4 times the pre-instruction currently required of Apprentices); allow them to work up to 25 hours/week; and receive up to 25% of their total clock hour credit via their Externship experience. And the state should allow salons the option to pay the Externs so that these student-workers can, like Apprentices, “earn while they learn.”
Competency v. Clock-Hour
We have also conveyed to state policymakers our willingness to embrace an alternative to purely clock-hour schooling, blending minimum clock hours for health/safety theoretical instruction with competency based verification of technical skills and procedures. Recent changes to our Board-mandated curriculum, as will be described later, already moves us in that direction.
This is not a policy reform that could be easily drafted into code, but policymakers certainly could authorize in statute the State Board to work with industry in developing in regulations such an alternative approach to purely clock hour credit. However, we continue to stress the importance of providing this as an option not a substitute for the current clock approach to education, to help progressive-minded schools transition to this model if they prefer this certifying approach.
Scope of Practice
Our organization has opposed a number of recent bills that sought to deregulate certain areas within our licensed scope of practice, including shampooing, blowdrying and hairstyling, as well an effort to allow nail salons to perform skin care services (specifically waxing). And those efforts come on the heels of successful legislation that exempted hair braiding and threading services from our licensed scope of practice.
To illustrate the dangerous approach of arbitrarily chipping away at our licensed scope of practice, consider shampooing services. While each of us may shampoo our own hair on a daily basis, no one other than a BBC licensed individual should have the right to make a living shampooing dozens of heads/day. This beauty service is merely the initial part of an entire cut/color process, wherein a properly trained licensee has the best opportunity to inspect the scalp of the client before performing more invasive beauty services (including the use of sharp instruments and chemicals). It’s at that point when open lesions, contagious diseases or infestations (such as lice) can best be detected and the overall service immediately discontinued if such are discovered (as our regulations require).
With regard to the failed legislative effort to expand waxing services to nail salons, it’s important to note that the manicuring license requires the least amount of formal education (400 hours), and not coincidentally, has the largest number of consumer harm complaints and infractions cited by the BBC. We think it is irresponsible for policymakers — in contradiction to the opinion of the vast majority of beauty professionals in this state and the BBC — to expand skin care services like waxing to nail salons given this history and minimal training. The risk of cross contamination, alone, should be ample reason to keep these services limited to those licensees who have received the necessary level of education to properly perform such a consumer-risk service.
We have learned by sad and long experience that when the Legislature gives an inch (in the way of deregulating certain services like hair braiding and threading), many in this industry will take the proverbial mile. As a real-time example of this, we encourage our elected representatives to drive by any nail salon in their district and see whether they are openly defying current law by advertising on their windows waxing services.
We do, however, embrace the idea of creating high-demand, sub-license categories such as hairstyling, since the vast majority of Cosmetologists (nearly 90% according our State Board’s latest issued survey of our licensed population) only want to do hair-related services. This new sub-license (like nail, skin and electrology) would require less than our current 1,600 hours for Cosmetology. Additionally the NIC offers such a licensing exam, so it could easily be brought online in our state, which is a member of this national council.
Booth Rental and AB 5
The sheer magnitude of this issue and the recent passage of AB 5 warrants a quick discussion about booth rental.
In the wake of the California Supreme Court decision called Dynamex in April 2018 and passage of AB 5 (Gonzalez) just two months ago, the vast majority of our salons will have to dramatically alter how they’ve been doing business for several decades under the guise of “booth rental.” That’s because most of our salons have independent contracted stylists, barbers, skin and nail technicians (our estimate is that over 70% of our California salons utilize booth renters).
While we supported the final version of AB 5, we believe there is still some work to do to (a) help elevate the professionalism of booth rental salons, (b) protect the labor rights of those who opt for this type of business model, and (c) inform consumers of the various business entities with which they may be unsuspectingly dealing in booth rental establishments. Most notably, we believe the Legislature should authorize the BBC to issue booth rental permits to those licensees desiring to practice as independent contractors and to post those separate permits at their workstations to inform their clientele.
Purpose of Licensure
While consumer protection is the highest priority of licensure, in general, there are two additional and fundamental purposes of BBC issued licenses: (a) the BBC’s required education and comprehensive regulations help set and maintain uniform standards for all beauty professionals and (b) in recent years the Legislature has expanded the BBC’s role to be the conveyor and protector of salon workers’ rights.
We believe these additional purposes for our industry’s license should be taken into account before policymakers consider any reduction in our scope of practice, or altering the statutorily mandated curriculum, or changing the mission and functions of our State Boards of Barbering/Cosmetology.
State Board Functions
Here in the Golden State we are grateful for some specific, noteworthy accomplishments of our State Board, and we regularly convey these to policymakers.
Twenty years ago, it took a graduate 8 months to be seated for the licensing exam, and one licensed category’s statutorily-mandated curriculum hadn’t been updated for 23 years!
After the State Board structure was reinstituted in 2003 by legislation the PBFC sponsored — requiring BBC meetings to be held in public with advance agendas, staff analyses, data reports and Minutes of prior meeting — the BBC began to turn over a new leaf of proficiency and openness. The change from a behind-closed-doors bureau to a publicly operated Board was immediate, and the results over time impressive.
The BBC has implemented several helpful curricular and examination reforms that has streamlined the path to licensure. The Board updated their out-dated, hour-by-hour mandated curriculum and adopted general rubrics of competency skills with overall hour requirements, while leaving the list of specific skills within each general rubric up to beauty school instructors to tailor to each individual student’s needs based on their personal progress. This represented the advent of a modest form of competency based education for schools willing to take advantage of this new-founded flexibility.
The BBC adopted the NIC exam, which regularly updates each of the five licensed categories every 5 years, keeping the licensing exam up-to-date with real world salon skills based on occupational analyses and test questions developed by subject-matter-experts.
The BBC also separated the two-part licensing examination (written and practical demonstrations) to allow students to take one portion at a time and only retake that portion that prevented their overall passage. This and several other reforms — including going from pencil to computer-based testing with additional CBT sites — significantly reduced the months-long backlog. Today it takes less than two weeks to schedule an exam from original receipt of the application, and schools can pre-register their students to take the exam within a day-or-two following their anticipated graduation.
The BBC’s salon inspection program also received a major make-over. The Board stripped their field inspectors of the ability to monetarily fine licensees at the time of the initial inspection, ending years of them serving as “judge, jury and executioner” and significantly diminishing the tensions of these surprise inspections. Now, citation findings are sent to the Sacramento Enforcement Division to review the licensee history and seriousness of the cited infraction before attaching any monetary sanction, ushering in a new level of due process that has been warmly received.
And the Disciplinary Review Committee (“DRC”) appeals were also significantly improved. Now, applicants can submit a written appeal rather than having to wait for hours at a time for a hearing held in only one of two locations statewide. And the DRC has been providing more frequent and location-rotating hearings to be more accessible to our large licensee population throughout our large state. As a result, appeal backlogs went from over a year to less than two months.
While implementing these thoroughly considered operational reforms, the BBC has had to deal with a number of insignificant but time-consuming statutory mandates that busybody legislators enacted, to which they have dutifully responded.
We believe these and many other reforms of State Board functions warrant gratitude of state policymakers, not a growing call to undermine the mission of occupational licensing and state oversight. The work of state regulators should be modest and clear, industry relevant and consumer oriented, and respectful of the long history of licensing oversight of this industry.
We hope you have found this summary of proposed policy reforms constructive and realistic. Perhaps they can help inspire other states, as well, in their united defense of our licensed profession.
(an edited version of this column was published in the November 2019 issue of the California Stylist)