“A new client came into the salon for a color consult. She told me it was going to be her first color service ever and since I had a cancellation, I started on her right then. She complained about the product itching, but we were using 30 volume. When I rinsed her before applying toner, her scalp, hairline, and nape were red and a puffy in places, but she said her skin was always ‘really sensitive,’ so I continued. When she left, she said her head felt raw and tingly. The next day she emailed the salon owner a bunch of pictures of her swollen face and said she would be suing the salon. My boss said she wouldn’t take responsibility for what I did and told the client to sue me. She gave the client my personal contact information, and now I’m dealing with nasty emails from her. Can I be sued for this? Was it legal for my boss to give her my address and phone number? What do I do? How can I fix this?”
Can the client sue you? Sure. Anyone can sue anyone for anything. Welcome to America: the land of the free and the home of the frivolous lawsuit.
Was it legal for the salon owner to disclose your address and contact information without your consent? I’m unaware of any specific law prohibiting it aside from California Civ. Code §1798.81.5, but it certainly wasn’t a smart move, especially when the reason your employer disclosed the information is considered. However, I’m not sure whether or not that information would be considered “private,” since home addresses can often be found through public methods (YellowPages, for example). If your contact information could be obtained by anyone capable of searching a directory, it’s likely not protected by any privacy laws.
Can an employer refuse to take responsibility for the actions of their employee? Typically, no.
Generally, employers are legally responsible for the actions of the employees if the employee is acting within “the course and scope of employment,” which you were, since you were doing your job when the injury occurred. This is called “vicarious liability” or “respondeat superior;” the responsibility of the superior for the acts of their subordinate.
In this case, the injury you caused was a known risk of doing business–one the employer was certainly aware of, and should be insured for. Allergic reactions to products are not a new phenomenon in our industry. We’re explicitly warned about them in beauty school repeatedly and all major brands direct professionals to perform patch/predisposition tests on clients in their instructions. At the very least, the employer should have required patch tests prior to any chemical applications.
Both of you knew better, but I ultimately hold you responsible for failing to safeguard this client by not performing your due diligence here. Why do I consider you to be responsible and not your boss?
Without a doubt, a patch test should have been performed, whether or not the employer’s protocols required it.
You consulted with her. As an educated, licensed professional, when the client informed you that it would be her very first color application, you should have performed the patch test and planned to meet twenty-four to forty-eight hours later to evaluate her results. With as fast as she began showing symptoms of an allergic reaction, I’m positive you both would have determined not to proceed with the service, since her skin would have reacted almost immediately.
If you prioritized your income before your client’s welfare, you deserve to suffer the consequences of that decision just as much as your employer.
Luckily for you, a judge probably won’t see it this way and the employer will be held accountable for what I consider to be your professional negligence. For now, all you can do is wait to be served. Let a qualified attorney direct you from there.
Salon owners, if you don’t already have a patch test protocol at your salon, implement one immediately. If you don’t have professional liability insurance, get a policy. (Employees and renters, that goes for you too. Policies are dirt cheap. You can get them from from pretty much ANY professional association at a discount with a membership: The Professional Beauty Association, Associated Hair Professionals, Associated Nail Professionals, Associated Skin Care Professionals–take your pick.) Just keep in mind that a PLI policy might not cover you if you disregard the usage instructions of a chemical product. I’ve run through several major brands (Paul Mitchell, Redken, L’Oreal, Schwarzkopf, Pravana). All specifically dictate that professionals perform proper patch tests.
Don’t let the infrequency of these reactions deter you from making patch testing a priority. Many color allergies are caused by the PPD in the dye. According to this DailyMail article, Julia McCabe slipped into a coma and died after a severe allergic reaction to the PPD in the L’Oreal hair color she used frequently. The coroner in that case said there is a massive gap between beauty industry figures, which suggest four customers in a million suffered such a reaction, and academic research which suggests it was as many as 14%. Here’s another case where another woman, Aurora Figueroa Lumen, died after suffering from an allergy to the ammonia in the dye.
You have no excuse to keep from taking appropriate measures to protect your clients.
I side with the clients on this issue. We’re professionals. We can do better than this, and they deserve better from us.
Hey Tina! I have been told that unless a medical doctor evaluates the patch test that it is not valid. If we evaluate the patch test we be sued for operating out of your scope of practice. Have you heard of this? Thanks for your input. I love your blog!
Thanks Heather! I’ve never heard of that! I’ll have to check into it. I know you can’t be sued for operating outside of your scope if you refer to a physician for evaluation. You can do a patch test and check it and refer anything questionable so long as you don’t attempt to diagnose or treat, but if that’s the case, we have to figure out how to comply with that and the manufacturer instructions, which are to perform patch tests on every client. I’ll do some investigating and let you know what I come up with!
Even if a client has their hair colored every few months a colorist must ALWAYS perform a test. Why? Because a person can develop and allergy. My mother is a cosmetologist and she had a client who frequently had her hair dyed (every other month). The final time she had a major reaction to the dye and needed to be hospitalized with a chemical burn. Thankfully my mother’s insurance covered it but she learned her lesson – even if a person never had a reaction before, do a patch test first OR have them sign a waiver acknowledging they are not going to have a patch test despite it being recommended to do so.
It’s so true. Overexposure to nail products causes contact allergies also. A lot of techs have had to give up acrylics for that reason.
Great article.
I have recently had an allergic reaction a hair dye in a salon, which ended with me being taken to the emergency room by ambulance, breathless, on oxygen and with my face so swollen, the pressure kept making me almost pass out. I was given prednisone, a high dose antihistamine and antibiotics which I had to continue to take for days after coming home from the hospital.
I cannot even begin to describe the psychological effects this whole experience has had on me.
So please, patch test all your clients, if you value them, you would not want them to go through what I did. It was hands down the scariest time of my life.
No way will every client will agree to stop by for a patch test. Is there a form they can sign that will prevent us being liable or will that even hold up in court? I have been doing hair 25 years and have never had one client with a reaction. So the chances are very slim anyway. However not wanting to take a chance, so what can we do for those who deny that? My clients sometimes drive quite the distance. They are not going to drive 50 miles for a patch test.
Chances are SUPER slim, but not nonexistent. You’ll have to speak with an attorney in your area and your professional liability insurance company to find out if there’s a way to legally release yourself of liability in those situations. Because manufacturer instructions dictate that patch tests be performed (likely to release themselves of liability, lol), it’s something you’ll have to talk to your insurance company and a personal injury attorney about.