This long-format interview answers many of your questions about this dramatic reform legislation, including not only the threatening elements but some of the decent provisions of this sweeping bill.

SB 803 is part of an overall, national movement to chip away at our licensed scope of practice and the education and training of the next generation of personal care professionals in the barbering and beauty sector (see the previous “Hot Topics” column for more details about the bill and our call to arms).

You can hear the entire, hour-long interview on whatever podcast feed you prefer, but here is a link to the Apple podcast platform:

The Hair Game Podcast SB 803 Episode

SB 803 would:

– Exempt hair cutting/styling from licensure;

– Reduce Cosmo/Barbering to 1,000 hours (from 1,600/1,500);

– Discontinue the Practical Exam (de-prioritizing hands-on skills training);

– Accept all out-of-state licensees with zero experience or commensurate schooling;

– Terminate the pre-application program for students (meaning they will wait months to take the licensing exam)

The Chairman ignored our suggestions to create a shortened hairstylist license and our proposal to expand the Externship program (see PBFC-sponsored AB 492 ) as but two means of reducing what they perceive as “unreasonable barriers to entry.”  And they ignored our call, along with our State Board’s, to rid our beauty colleges from ineffective and costly BPPE oversight, as well as our request to treat Manicurists fairly under AB 5 by extending their rights to work as independent contractors.

You can read the latest version of this troubling bill here: 

SB 803 Language

Yet again, callous Sacramento politicians are disrespecting our professional standards, wrongly perceiving our trade as menial work that is unworthy of rigorous education/training and licensure.

We need your help in establishing the respect our livelihood deserves by:

1. Contact your own State Senator and Assemblymember. You can find who they are here: Find Your Legislator  Your message to your own elected representatives should be simple/concise: “I urge you to OPPOSE the gutting of our barbering/beauty license scope of practice and the education and training that goes into that license as proposed in SB 803 (Roth). After a year of Covid lockdowns, now is not the time to fundamentally undermine the health/safety training underlying our regulated profession that has been licensed since 1927.”

2. Second, we need you to contact the two Co-Chairs of the Committees responsible for this ominous bill: Senator Richard Roth (Riverside County) and Assemblyman Evan Low (San Jose/Silicon Valley). Their Chief Consultants are the best means to send a message to their bosses: Sarah.Mason@sen.ca.gov AND Robert.Sumner@asm.ca.gov

While you are likely not constituents of the two Chairs, their legislation will impact your livelihood and the overall professionalism of our beloved industry. So you certainly have a right to convey your concerns directly to the authors’ staff of this dramatic reform measure.

3. Third, please follow our Instagram (ProBeautyFederation) and Facebook (PBFCalifornia) pages for more regular updates.

4. Spread the word and enlist additional foot-soldiers in this battle to preserve the professionalism of our industry (FORWARD this email now).

5. Finally, to keep the PBFC in our State Capitol full time, please consider joining the PBFC (and annually renew if you have already joined) … we hope we have earned your trust, appreciation and support.

In sum, here are the amendments to SB 803 the PBFC is seeking:

• Establish a lower hours Hairstylist license: Consistently, 9-out-of-10 Cosmetologists indicate that they only do hair services. Nails/skin care training within Cosmetology is superfluous for most students who would opt for a 1,200-hour Hair-only license.  And the national NIC examination already offers a Hairstylist exam in other states, as do our textbooks, so it’s an easy addition. But preserve the current hours of Barbering & Cosmetology.
• Expand Externships: Consistent with AB 492 (Patterson), allow students to earn more clock-hour credit for real-world, salon experience and be paid for their salon service, as Apprentices currently enjoy.
• Preserve the Practical portion of the licensing exam: Hands-on competencies must be paramount for licensing verification, and therefore the Written and Practical portions of the exam should be graded according to current law B&P 7338, which states: “In the conduct and grading of the examinations, practical demonstrations shall prevail over written tests.”  This will aid non-English  students most of all, as they often excel in hand-on demonstrations but struggle with written exams.
• Do not reduce licensure scope: The cutting and styling of hair is an integral part of our licensed scope of practice, and it carries considerable consumer risks.
• Preserve Student Pre-App:  Do not end student pre-application rights for the licensing examination.
• Shift BPPE responsibilities to BBC: dual DCA oversight is not helping our students, who only know and turn to our State Board (“BBC”) for redress.  The BBC, unlike the Bureau for Postsecondary Education, is a competent DCA agency.
• Welcome comparable out-of-state licensees: California led the nation in 2006 with the most welcoming “reciprocity” law that the PBFC sponsored, but we should only accept out-of-state licenses with comparable standards, or require industry experience, per B&P 7331.
• Treat Manicurists equally in AB 5: The current January 2022 sunset for Manicurists being allowed to operate independently should be extended/removed to treat them equally as the other licenses. 

To understand that is to better appreciate the very real threat our industry faces from think tanks, special interest groups and a growing number of policymakers.  That’s because many of these intellectuals, influencers and politicos are turning against state occupational licensing of trades they perceive to be simple, dirty or mindless.  Why should a hairdresser have to go to school for 1,600 hours to cut hair, they openly challenge?

And that condescending attitude is no more clearly on display than in our home state of California, which remains the only state in the union that has kept our skin and nails service professionals in lockdown, only opening up our hair salons/barbershops on August 31.  That represents over 5 months of lockdowns of our industry in the Golden State!

Our state elected representatives don’t much care for all-cash sectors, or for industries dominated by independent contractors.  To be blunt, they believe we are tax cheats and labor law scofflaws. 

Almost all of our State officials went to 4-year colleges, and many of them have additional, post-graduate degrees.  They look down upon those of us who may have barely finished high school, “settling” on beauty college as an “alternative” career pathway. They sit in judgement of our labor of love and passionate career choice in their smug ignorance.

In reality, our’s is an industry based on the professionalism, safety and expertise of behind-the-chair (or above/across the table) artists and technicians.  In our own state, our 53,000 licensed establishments are the quintessential small businesses that are the backbone of our state’s economy, built on the sweat, tears and unflinching optimism of entrepreneurial risk-takers and independent-minded creators.

We may not have gone to university, but we have formal, postsecondary education and training that led to a state license.  And as licensed professionals, we know how to build a business from scratch, market our services, and generate a reliable book of clientele.  And unlike so many so-called “essential businesses”, we know how to keep our clients safe in this new era of pandemics.  How many college graduates can say they can do all that?

Our elected representatives don’t understand what makes this industry tick.  They don’t appreciate our licensed professionalism, they disregard our business savvy, and they don’t regularly hear our united voice.  Our state officials, including and most especially our California Governor, have marginalized and ignored us throughout the COVID crisis, feeling he could do so with little political cost.  

And we have been treated like the sacrificial lamb by health officers intent on showing the public and media that they have been doing something to combat this pandemic.  While they are too intimated by better organized and influential industries to shut them down, they have instead targeted the motley crew of small business, personal service sectors, believing we wouldn’t unite and fight back.

They ignored the fact that most of our industry’s businesses are female owned and operated, and that many are first-generation immigrants or people of color.  Or perhaps they understood this and figured women and immigrants wouldn’t fight back.  We’d simply accept the disrespect.  

The barbering and beauty industry has served as an economic stepping stone for millions of Californians, currently representing 621,000 individuals licensed by our State Board.  And hundreds of thousands of them have rallied, protested, signed petitions, posted on social media, and sent millions of letters/emails to their elected representatives.  We have generated countless TV, radio and print media stories that explain the safety of our licensed and well regulated services and the patent unfairness by which our so-called “non-essential” sector has been treated throughout these lockdowns. 

The result?  On August 28, our Governor capitulated to our lobbying and protests, calling out only one industry for statewide reopening.  We at the PBFC can assure Stylist readers that our collective political pressure has been the ONLY reason he made any concessions to our industry at this time.  

We know this because the science and data have been our side throughout this pandemic, including the express endorsement of our salon safety protocols by the CDC.  And yet the prolonged lockdowns stretched as far as the eye could see.  We are so much safer than dental offices and most of the “essential businesses” that have never been shuttered a single day.  But it was our growing political muscle that eventually swayed our Governor, at least when it came to hair services. 

Unfortunately, his health experts continue to maintain the position that skin and nail services present a higher risk of transmission, and so we will continue to battle for these professional service providers until all of our salons, barbershops, and spas are back on their feet and safely beautifying their clientele.

The moral of our somewhat unique California story is that united our industry can wield considerable political influence, but fragmented we will be targeted by politicians and bureaucrats.  

If we don’t stand together with one, strong voice in each of our respective state capitols, it is only a matter of time before policymakers strip us of our license and continue to erode the professionalism upon which this industry has been built.  Let California’s experience be a cautionary tale for all stylists and shop owners nationwide.

(and edited version of this column ran in the August edition of the “Stylist” magazine)

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. 

Licensure Pathways

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.  

Externship

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)

Booth Rental 

As the state which provided the biggest impetus for booth rental nationwide back in the early 90s, it should come as no surprise that California is now reconsidering the legal confines of this independent contractor relationship.  Governor Newsom just signed legislation that will usher in sweeping reforms of these types of worker relationships.

AB 5 essentially renders illegal most forms of independent contractor relationships with the exception of those few sectors that received an exemption in that legislation.  Our industry did, in fact, earn a limited exception in that bill, but it is narrowly tailored.  It won’t make all booth renters in this state happy and could prove to be a model for other states to follow.

We’re pleased the Legislature heard our unifying plea that policymakers shouldn’t be picking winners and losers in our industry, and that any new law should apply equally across our entire industry.  The final version passed during the final week of the Legislative Session was expanded to include all our licensed categories, including manicuring.

So here are the weeds of the new law that will take effect January 1:

The legal classification of independent booth renters will be governed by the “right to control” standard that was previously in place before the recent California Supreme Court decision called “Dynamex” with some added, explicit limitations spelled out in the California Labor Code.  

Those include a requirement for any bona fide independent contractor to obtain their own, separate “business license, in addition to any required professional licenses or permits for the individual to practice in their profession.”  In addition, the contracted individual must be able to show that they have “the ability to set or negotiate their own rates for the services performed”, “the individual has the ability to set the individual’s own hours”, “the individual is customarily engaged in the same type of work performed under contract with another hiring entity or holds themselves out to other potential customers as available to perform the same type of work”, and “the individual customarily and regularly exercises discretion and independent judgment in the performance of the services.”

Beyond these general requirements for all independent contractors, AB 5 has specific elements that apply only to our industry, requiring each booth renter to show specific ways in which independence from the salon owner is clearly established.    

In order to be a validly classified independent booth renter in California, that individual must set “their own rates”, process “their own payments”, and be “paid directly by clients.”  Moreover, booth renters must set “their own hours of work and have sole discretion to decide the number of clients and which clients for whom they will provide services.”  They also must have “their own book of business and schedules their own appointments”, maintain “their own business license for the services offered to clients,” and “if the individual is performing services at the location of the hiring entity, then the individual issues a Form 1099 to the salon or business owner from which they rent their business space.”

Armed with the legal clarifications of AB 5, regulators from the Employment Development Department, the Department of Industrial Relations, Cal-OSHA and the Franchise Tax Board, to name just a few, will have considerable new leverage on their side as they seek to clamp down on employee misclassifications.  And the IRS will no doubt be clipping on those state agencies’ heels, anxious to nail misclassifying salon owners with delinquent payroll, FICA and other withholdings with penalty interest charges.

So, as you can see, while booth rental has earned a reprieve from Dynamex’s existential threat, salons utilizing renters will have to run a much tighter ship than current industry practices.

School Oversight

The California Legislative Session that began in January 2019 saw the introduction of seven bills that sought to crack down on all vocational training postsecondary schools.  We dubbed these troublesome bills the “7 Horsemen of the Apocalypse”, as they truly represented an existential threat to every private beauty college in this state.  

These bills would’ve resurrected the Obama-era “gainful employment” regulations here in California, created a stiffer loan-to-cash ratio (80/20 rather than the Obama Department of Ed’s 90/10), prohibited schools from contracting with recruiters or even paying their own employees to do marketing services to potential students, and a host of other dramatic reforms intended to punitively dampen the growing demand for vocational training and education in these for-profit institutions. 

These schools are the primary pipeline of our future stylists, so our organization eagerly joined the fray to push back on these far-reaching legislative measures.

We’re pleased to report that after considerable lobbying, only one of the most ominous bills passed the Legislature and was signed into law last week by the Governor.  But even that bill, AB 1340 (Chiu, et al.), had to be substantially watered down to earn passage.  

The final version merely adds a new level of tracking graduates’ loan debt and career placement information, which must be relayed to the Bureau for Private Postsecondary Education.  The BPPE will eventually publish this information on their website for the consideration of future students, who will be able to compare the debt levels and successful job placements of competing beauty (and all private postsecondary) schools. 

There is no doubt the intent behind AB 1340 is to lay the groundwork for resurrecting gainful employment regulations in the future (at least here in California) — as that was the first iteration of the bill before it was substantially amended, so it is a battle schools will have to engage for years to come.

Sunset Review 

Finally, our State Legislature will be performing its five-year “sunset review” of our State Board of Barbering & Cosmetology in the coming months, having completed it’s first preliminary hearing just a few weeks ago.  For any of you interested in seeing the PBFC’s Legal Counsel/Advocate in action, you may see Fred’s testimony before this joint legislative committee here:

https://www.youtube.com/watch?v=3iIWiW1m2lM&feature=youtu.be

It is clear that some Legislators have the current clock-hour requirements, the Practical Exam, and our various licensed scopes of practices under close scrutiny, so industry stakeholders will have to remain vigilant and involved in shaping any policy reforms that flow therefrom.

Our industry has proven resilient and adaptive.  With these and other policy changes coming at us in a seeming torrent of reform initiatives, it’s imperative licensed professionals and industry stakeholders tune-in, turn-on and remain nimble.  These dramatic reform proposals have certainly given our trade association added significance, buttressing the importance of maintaining a coordinated lobbying presence in the State Capitol of the largest state in the country.  

• An edited version of this column ran in this month’s California Stylist:

https://www.stylistnewspapers.com/online_edition/2019_online/1019_online/1019_ca_online/27/index.html#zoom=z

Public policies and regulatory reforms have been recent agents for change, some of which have the potential to significantly alter the trajectory of your beauty careers and businesses.  These legal trends are happening throughout the nation at numerous state houses and regulatory agencies.

Here in California, the legal landscape has been in a constant state of upheaval the past five years, first with dramatic reforms to employee compensation, followed by a major shift in how booth rental establishments must operate.  Along the way, we’ve also had to fend off a coordinated campaign to erode our licensed scopes of practice, which were nothing less than a delicensure/deregulation scheme.

Limits To Commissions 

California has essentially rendered commission wages, i.e., sharing percentages between the salon owner and stylist, an illegal form of employee compensation.  Commissions can only be paid to an employee who is selling someone else’s product or service, not their own (think of a car salesman as an authorized example).  So while it may be appropriate to earn commissions off retail product sales, it is not so for commissions tied to beauty services.

California labor law provides only two exceptions to that ban on providing stylist-employees a percentage of the revenues they help generate via their beauty services, namely: (a) piece-rate bonuses or (b) SB 490’s commission exception.

Piece-Rate Wages

A few years ago, California’s policymakers passed AB 1513, which went into effect January 2016 but is only now being implemented by regulators (and enforced by lawyers representing some disgruntled salon employees).

That law and its subsequent interpretation and implementation by the California Department of Industry Relations require employers who want to reward their employees with payment for completing a particular service to follow a detailed pay calculation.  

Employers cannot incentivize their employees to skip their statutory right for rest/recovery periods, nor can they penalize them for their non-productive time when they are under the employer’s control.  It is now illegal to pay employee-stylists more when they’re performing their services and less (or not at all) when they are between clients or taking their legal breaks.

Piece-rate compensation is an exception to the ban on commissions, but it requires significant payroll monitoring and paperwork.  The employer has to track in each pay period all the rest/recovery and non-productive time of the stylist-employees to ensure that they earn commensurate pay as received during their productive time — a management nightmare for sure!

SB 490 Commission Exception

In an attempt to provide our industry an alternative, less cumbersome means around California’s rather broad prohibition against commissions and the piece-rate paperwork morass, the State Legislature passed SB 490 (Bradford).

This new law that went into effect two years ago allows a salon owner to pay an employee-stylist on a commission basis, but only in addition to a base hourly rate of twice the minimum wage. By 2022, that base wage rate would be $30/hr (since our state’s minimum wage will be $15/hr, then).  Clearly the SB 490 option is out of reach of the vast majority of salons.  

So even though it has been the long-held practice of our industry to pay stylists on a commission basis (some on flat commissions, others blended with minimum wage plus commissions), those pay structures are now legally dubious in California.  And the only two exceptions in statutory law — “piece rate” or SB 490’s “twice-minimum” — are either too cumbersome or cost-prohibitive for most salons.

Booth Rental

We have dedicated a number of columns to the bombshell California Supreme Court decision called “Dynamex,” so we would encourage readers to dig those up from our online archive.

Suffice it to say, here, that at least here in California and in a few East Coast states that have also adopted the “ABC Test” to distinguish independent contractors from employees, the days of booth rental as customarily practiced in our industry are numbered.

In reaction to this ominous threat, booth renters and their shop owners rallied the troops and began peppering our state representatives with angry phone calls, emails, social media posts and visits.  Black barbershops, in particular, were very effective in reaching out to their elected officials to explain the existential threat to these urban hubs of African-American males.

The result was legislation introduced in the form of AB 5 (Gonzalez), which while seeking to codify the Dynamex ruling also provides very limited exemptions to a small number of industry sectors that have historically utilized independent contractors.  As a result of the impressive grassroots revolt from our industry, hairstyling and barbering, as well as skin and electrology services were included in this Dynamex exemption, but notably thus far manicuring salons are not included in the legislation (at least at the time of publication of this column).

The narrow exemption will only apply to hair and skin salons whose workers are “free from direction or control” of the salon owner, including setting their own rates for services and hours of operation and maintains “their own book of business and schedules their own appointments.”  Additionally, these booth renters will have to use “their own funds to purchase requisite supplies” and obtain “their own business license”, among other requirements to maintain separation between the booth renter and establishment owner/landlord.

This Assembly Bill has passed it’s House of Origin and is awaiting final action in the  Senate before being sent to Governor Newsom for signature/veto (his deadline for action is mid-October).  So stay tuned on this important development.

* THIS JUST IN (9/6/19 Update):

AB 5 was just amended into its final form that will be sent to the Governor for his promised signature.

Latest changes add in Mani’s (so that all BBC licensed individuals are provided this limited Dynamex exemption), but only extends this exemption to Mani’s for two years (the author has committed to working on some long term solution in subsequent legislation next year, possibly including a new booth renters permit promulgated by the BBC). The exemption for everyone is further narrowed in this final version, requiring 1099s from the booth renter to the landlord/establishment owner (not the other way around) and requiring the booth renter to process their own payments for services on clients (among the other requirements previously stated in bill). Here is the operative section of AB 5:

(xi) Services provided by a licensed esthetician, licensed electrologist, licensed manicurist, licensed barber, or licensed cosmetologist provided that the individual:
(I) Sets their own rates, processes their own payments, and is paid directly by clients.
(II) Sets their own hours of work and has sole discretion to decide the number of clients and which clients for whom they will provide services.
(III) Has their own book of business and schedules their own appointments.
(IV) Maintains their own business license for the services offered to clients.
(V) If the individual is performing services at the location of the hiring entity, then the individual issues a Form 1099 to the salon or business owner from which they rent their business space.
(VI) This subdivision shall become inoperative, with respect to licensed manicurists, on January 1, 2022. 

You can read the entire bill at this link:

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB5

Delicensure

And if these full frontal assaults on how stylists are paid wasn’t enough, during last legislative session the California Senate overwhelmingly passed a delicensure bill, SB 999 (Morrell).  Fortunately my organization, with the help of many in our industry both in California and beyond, were able to stop this troublesome bill cold in the lower House of our Legislature (Assembly).  This ominous legislation would’ve exempted from licensure and regulatory oversight all shampooing and hair services not involving scissors/chemicals.

While on it’s face it was innocuous enough, the intent behind the sponsors of this bill and the author, himself, was to put a dagger through the heart of vocational licensing altogether.  This deregulation movement has placed our industry at the top of their list, seeing it as the lowest hanging fruit for their much more expansive, libertarian designs.  And this coordinate effort is spreading throughout the 50 states under various guises, including even social justice concerns about economically disadvantaged populations facing unreasonably high barriers to entry to making a living in beauty.  So it shares bipartisan support and is only gaining momentum.

Freelancing

Finally, a word about the next potential means of avoiding the cost and liabilities associated with employed stylists and technicians, given the ongoing threat to our traditional booth rental segment in the post-Dynamex world.  

California policymakers have adopted a “Personal Service Permit” for licensees who want to freelance their services outside of licensed establishment.  Our State Board is in the final process of adopting regulatory language governing said PSP’s.

Will this soon-to-be legally operating freelance workers pose a systemic threat to all brick-and-mortar establishments, employee or booth rental alike?  Or will this new permit merely authorize the long held norm of limited beauty services being offered at only special events outside regulated salons?  How this plays out in the largest State in the Union is something every salon owner — from independent to chain, from sole proprietor to multinational corporation — will be watching very closely, as well the gig economy, already gaining a foothold in this industry.

Our industry has proven resilient and adaptive.  With these and other policy changes coming at us in a seeming torrent of reform initiatives, it’s imperative licensed professionals and industry stakeholders tune-in, turn-on and remain nimble.  These dramatic reform proposals have certainly given my organization added significance, buttressing the importance of maintaining a coordinated lobbying presence in State Capitols throughout the country.  

*An edited version of this column appeared in the September issue of the California Stylist:

https://www.stylistnewspapers.com/online_edition/2019_online/0919_online/0919_ca_online/18/index.html

If the past is prologue, 2019 will likely be a very busy year in the policy and regulatory reform arena, with serious implications for everyone earning a living in our industry.  Here’s a recap of last year’s dramatic developments.

Limits To Commissions

I have spent countless hours on the phone this past year speaking with California salon owners in a panic about recent changes in our state’s labor laws, specifically how it relates to commission wages.  These new laws will now be enforced by California regulators and possibly pursued by the plaintiff’s bar, so salon employers ignore them at their peril.

California has essentially rendered commission wages an illegal form of employee compensation.  Commissions can only be paid to an employee who is selling someone else’s product or service, not their own (think of a car salesman as an authorized example).  So while it may be appropriate to earn commissions off retail product sales, it is not so for commissions tied to beauty services.

California labor law provides only two exceptions to that ban on providing stylist-employees a percentage of the revenues they help generate via their beauty services, namely: (a) piece-rate bonuses or (b) SB 490’s commission exception.

Piece-Rate Wages

A few years ago, California’s policymakers passed AB 1513, which went into effect January 2016 but is only now being implemented by regulators (and enforced by lawyers representing some disgruntled salon employees).

That law and its subsequent interpretation and implementation by the California Department of Industry Relations require employers who want to reward their employees with payment for completing a particular service to follow a detailed pay calculation.

Employers cannot incentivize their employees to skip their statutory right for rest/recovery periods, nor can they penalize them for their non-productive time when they are under the employer’s control.  It is now illegal to pay employee-stylists more when they’re performing their services and less (or not at all) when they are between clients or taking their legal breaks.

Piece-rate compensation is an exception to the ban on commissions, but it requires significant payroll monitoring and paperwork.  The employer has to track in each pay period all the rest/recovery and non-productive time of the stylist-employees to ensure that they earn commensurate pay as received during their productive time.

SB 490 Commission Exception

In an attempt to provide our industry with an alternative, less cumbersome means around California’s rather broad prohibition against commissions and the piece-rate paperwork nightmare, the State Legislature passed SB 490 (Bradford).

This new law that went into effect last year allows a salon owner to pay an employee-stylist on a commission basis, but only in addition to a base hourly rate of twice the minimum wage. By 2022, that base wage rate would be $30/hr (since our state’s minimum wage will be $15/hr, then).  Clearly, the SB 490 option is out of reach of the vast majority of salons.

So even though it has been the long-held practice of our industry to pay stylists on a commission basis (some on flat commissions, others blended with minimum wage plus commissions), those pay structures are now legally dubious in California.  And the only two exceptions in statutory law — “piece rate” or SB 490’s “twice-minimum” — are either too cumbersome or cost-prohibitive for most salons.

But there is a glimmer of hope on this front, and this comes from the third branch of government, the judiciary.  A recent Appellate Court decision out of San Diego recognized a possible workaround of the piece-rate law without a salon owner breaking their bank with the exorbitant, twice-minimum wage base rate of pay.

In the case of Certified Tires and Service, the Fourth Appellate District Court of California upheld a wage calculation in which the employer provided each employee a guaranteed base hourly wage (above minimum wage) and then added more to that base hourly wage based on the past productivity of each employee during that pay period.

The case is only at the Appellate level, so if the California Supreme Court decides to take the case on further appeal, the ruling would have no authority.  But it is a published case, and if the Supreme Court doesn’t take the plaintiff’s appeal, “Certified Tire” will be precedent and applicable statewide.

However, as is the case with almost every judicial decision, the legal principle only applies to the specific facts and approach employed in this particular case.  So an employer/employee salon should seek competent legal counsel before implementing such an incentive, hourly wage schema as a possible alternative to the more cumbersome piece-rate wage calculations or the much more costly SB 490 option.

Booth Rental

I dedicated three columns last year to the bombshell California Supreme Court decision called “Dynamex,” so I would encourage Stylist readers to dig those up from the online archive.

Suffice it to say, here, that at least here in California and in a few East Coast states that have recently adopted the “ABC Test” to distinguish independent contractors from employees, the days of booth rental as customarily practiced in our industry are numbered.

And while I predicted the plaintiff’s bar would lead the charge against booth rental utilizing the newly established ABC standard, I have been surprised to hear of roving bands of bureaucrats in various regions of California making surprise visits at places of business (outside of our industry) to determine compliance with the principles underlying the Dynamex decision.

A number of state agencies, including EDD, DIR and Cal-OSHA have actually created an “Underground Economy Section” from which investigators with each of these agencies team-up on such field inspections, beginning each interview with “Is there anyone working here who is paid as an independent contractor by your company?”

So Big Brother has now joined with your friendly neighborhood plaintiff attorney to separately but simultaneously begin cracking down on any business utilizing independent contractors, which clearly includes booth renters (since California statutory law does not distinguish booth renters from independent contractors).

Delicensure

And if these full frontal assaults on how stylists are paid weren’t enough, the California Senate overwhelmingly passed a bill last year, SB 999 (Morrell), that was intended to begin chipping away at our licenses.  Fortunately, my organization, with the help of many in our industry both in California and beyond, were able to stop this troublesome bill cold in the lower House of our Legislature.  This ominous legislation would’ve begun inexorable chipping away at licensure of our entire industry, beginning with an exemption for all shampooing and hair services not involving scissors/chemicals.

While on its face it was innocuous enough, the intent behind the sponsors of this bill and the author, himself, was to put a dagger through the heart of vocational licensing altogether.  This delicensure movement has placed our industry at the top of their list, seeing it as the lowest hanging fruit for their much more expansive, libertarian designs, and it is definitely spreading throughout the 50 states.

I have no doubt this effort will continue in the New Year, so we must remain vigilant.

Freelancing

Finally, a word about the next potential means of avoiding the cost and liabilities associated with employed stylists and technicians, given the ongoing threat to our traditional booth rental segment in the post-Dynamex world.

California policymakers have required our State Board to adopt a “Personal Service Permit” for licensees who want to freelance their services outside of licensed salon establishments.  The Board is in the final process of adopting regulatory language governing said PSP’s, which they labored over for the better part of 2018 to come up with the most responsible means to regulate such freelance work.

Will freelance workers, permitted by law, pose a systemic threat to all brick-and-mortar establishments?  Or will this new permit merely authorize the long-held norm of limited beauty services being offered at only special events outside regulated salons?  How this plays out in the largest State in the Union is something every salon owner — from independent to chain, from sole proprietor to multinational corporation — will be watching very closely, as well the gig economy, already with a firm a foothold in this industry.

Clearly, policymakers and regulators have been very busy this past year.  I see no reason why that pace of policy reform will decrease in 2019 and beyond.  The dramatic changes in just the past year to California’s legal and regulatory landscape should be proof sufficient of why all industry stakeholders should remain vigilant and involved in the policy and regulatory deliberations of their state lawmakers and regulators.

Here in California, the most high-profile and effective way to do that is for you to help sponsor the PBFC’s annual “Welcome to Our World” event, which helps fund our advocacy work each year.  You can find more information about this highly anticipated, popular lobbying event by going to our WOW page.  Our 19th annual WOW is scheduled for May 6, 2019.

Here’s where we keep you abreast of the latest news, information, and happenings impacting California’s beauty and barbering industry. From recent changes in the law to emerging policy reform initiatives, you’ll be on the cutting edge of real-time, reliable and actionable insights that only the PBFC can deliver.

Fred Jones serves as Legal Counsel to the Professional Beauty Federation of California, a trade association singularly dedicated to raising the professionalism of the beauty industry.  To learn more about the PBFC and receive further details about the subjects contained in his column, go to www.beautyfederation.org.