FEDERAL: Proposed DOL rule would allow tip-pooling to include non-tipped workers.

In case you somehow weren’t aware, restaurant owners have been pushing for decades to change tip pooling rules so they can avoid properly compensating their untipped employees (like their kitchen staff). Under this proposed rule, untipped workers would be able to participate in the tip pool, which means all of the tips would be distributed among not just the servers and bartenders, but the kitchen staff and host/hostesses as well. Restaurant owners often disguise this as a compassionate gesture, claiming their back-of-house staff also contributes to the dining experience and should enjoy tip income as well. While that’s a true statement, the restaurant owner’s position tends to be disingenuous. Really, they want to claim tip credits to minimize their wage obligations to those employees by making them eligible for the tipped wage rate of $2.13/hr.

Fortunately, this rule wouldn’t allow that.

All caps and bold for those of you scanning this newsletter:
The Department’s proposed rule would allow employers who do not take a tip credit to establish a tip pool to be shared between workers who receive tips and are paid the full minimum wage and employees that do not traditionally receive tips, such as dishwashers and cooks. The proposed regulation also explicitly prohibits employers, managers, and supervisors from keeping tips received by employees.

The plight of the workers in the restaurant industry isn’t my fight, so I’m not going to get into that except to say that tipping is stupid and discriminatory. If you pool tips in your salon, this rule might benefit you, but will not result in you being able to justify paying your assistants and receptionists eight quarters and thirteen pennies per hour, using the combined tips of your professionals to make up the difference.

FEDERAL: Workforce Mobility Act will make NCAs more appropriate.

As it stands, each state has its own rules regarding non-compete agreements. For the most part, they require NCAs to be reasonable and specific. Some states restrict their use to upper-level employees (those who would have access to trade secrets and a significant advantage if they were to compete). Unfortunately, many states do not have specific requirements or restrictions. This allows salon owners to contractually forbid their ex-employees—like stylists, nail techs, and estheticians—from accepting employment at other salons.

Too few salon owners understand how to properly apply non-compete agreements, as they often don't understand who a "competitor" actually is. An employee who leaves your facility to work at another salon is not a competitor. An ex-business partner who ends their partnership with you and establishes a competing salon is.

This bi-partisan law would make it so non-compete agreements are only used where they make sense to be used—during the dissolution of a partnership or sale of a business. This will keep people who are actually poised to compete from competing, instead of keeping professionals from working.

PHILADELPHIA: New unit established to prosecute crimes against employees.

I often hear complaints from salon employees that their employers never actually face justice, even after they follow all the proper procedures to report them to authorities. Unfortunately, state and federal enforcement agencies are extremely overburdened and underfunded, so cases tend to move very slowly—if they aren’t stalled completely by an apathetic state government (like Florida’s).

Well, Philly has had enough. They’ve established a new unit in the DA’s office specifically for prosecuting employers who violate wage and labor laws. Compliant salon owners who are sick of competing owners gaining an advantage due to wage theft tactics: let’s rejoice.

CALIFORNIA: New laws increase employee protections.

The Stop Harassment and Reporting Extension Act, AB 9, extends the deadline for filing harassment, discrimination and other claims under the state’s Fair Employment and Housing Act (“FEHA”) from one year to three years.

AB 51, prohibits employers from requiring applicants and employees to waive a right, forum, or procedure under the FEHA and the California Labor Code. Related statute SB 707 provides for severe penalties—including losing the right to arbitrate claims—for the drafter an arbitration agreement who fails to pay arbitration fees within 30 days of the due date.

CALIFORNIA: Court of appeals suggests that employee non-solicitation agreements are unenforceable.

Sorry, California salon owners, other industries (typically tech) keep ruining things for all of us. Several recent court decisions are making it look very likely that all non-solicitation agreements will become unenforceable in the state. Keep an eye on this. You may need to make sure that the prohibition only applies to employee solicitation (not solicitation in general).

CALIFORNIA: Employee mandatory arbitration outlawed.

Although they seemed to be gaining in popularity about five years ago, thankfully, mandatory arbitration agreements aren’t common in our industry. If you’re a California salon owner utilizing them in your business, it’s time to have your attorney revisit them to ensure compliance. If you need a refresher on what arbitration agreements are, you can read about that here.

TL:DR—every citizen in the US has the constitutional right to air their grievances in a court of law. I’ll never understand how we allowed that right to be waived by contract, but it’s looking a lot more like that won’t be the case for much longer.

REPLY ALL: Protected Concerted Activity

In her resignation email, a bartender criticized the restaurant’s owner and general manager; shortly thereafter, several servers were terminated after replying to the email to thank the bartender for speaking up for them. The NLRB determined that the restaurant violated the NLRA when they terminated the servers, as their replies were considered protected concerted activity. I recommend reading this article to get a better idea about what statements and actions are allowable under the NLRA.

Pepperidge Farm Busted for Misclassification

Not industry-related, but this serves as a reminder that even large companies (that likely have in-house legal teams) are just as capable of making egregious mistakes when it comes to worker classification.

SUPER GROSS BEHAVIOR: Salon owner's husband threatened departing employee with deportation.

I wouldn’t be sharing this story if I didn’t know for incidents like this to be a common occurrence in our salons. To make a gross story short: this hair salon owner’s nail techs (renters) left to open an employment-based nail salon next door. The remaining nail tech (renter) informed them that she planned to leave and accept a job at the nail salon, making up a lie about needing regular payslips to help renew her work visa in an attempt to separate amicably. Apparently, this gave the salon owner's husband, a Scottish law chief, the impression that he could bully her into staying.

At 1:22 AM (when all the most well-considered correspondence is sent) the salon owner's husband messaged the employee (like all intelligent attorneys do), with the following:

“I don’t know if you know what I do but it might be informative for you to know I am the head of prosecution in Grampian," responsible for making prosecution decisions on HMRC, serious fraud and immigration cases, and “responsible for making recommendations on deportation matters."

When she went to collect her things, she found her chair and supplies tossed into the street outside the salon. (Can you blame her for lying to this tantrum-throwing piece of work?)

Now, I think every nail specialist in this business knows what it’s like to be “the nail girl” in a hair salon, shoved into a back corner (where clients only see us if they’re on their way to the bathroom), never prioritized by their coworkers or the front desk, always last on the list of priorities. We’re often treated like an amenity, since our services are not central to the salon. We’re hired for “convenience,” to hopefully keep clients in-house. This can suck when you're an employee, but it's a whole lot worse when you're a renter and the salon owner has no obligation to inform clients of your existence. While I can’t be sure that was going on in this particular salon, I strongly suspect it.

This owner reported feeling “hurt” by the ex-employees, and as a salon owner, that’s a feeling I can absolutely relate to. I think every salon owner I’ve consulted for has been shell-shocked by an employee departure at least once. However, it’s extremely important that we do our best to keep our emotions from influencing our behavior. This kind of thing should never, ever happen.

DISCRIMINATION: Aveda salon charges Black woman a "texture tax."

A woman was charged $10 extra, supposedly because her textured hair required “extra product.”

If you’re currently charging anything even remotely resembling a discriminatory “texture tax,” stop immediately.

We all know that clients who have longer and/or thicker hair require more product and more time. This needs to be communicated in advance, charged appropriately, and—let’s be very clear about this—not specific to ethnic clients.

How do we charge appropriately for that extra time and product? If you’ve completed the Salon Compensation and Pricing Megakit, you should know exactly what extra labor and product costs. (If you're like any of my consulting clients, that minutely number probably haunts your nightmares.) Calculating the proper fee for the time and materials shouldn’t take more than a minute. If questioned about the extra cost, you won’t have a single problem defending it, so long as that fee routinely applies to every single client who justifies it.

Silent Hair Appointments: YESSSSSSS

To some people, the idea of being trapped in a chair for over an hour being forced to talk about work, family and your no-good ex boyfriend is true hell. I am one of those “some people”…and there are a whole lot more of us than you probably realize.

I’ve mentioned before that clients aren’t friends. In that post, I state that, as a career manager, “I am the person your clients complain to about your ‘special friendship.’” As a personal rule, I would not speak to clients unless they spoke to me, except to communicate about the service or to ask service-related questions. I was frequently complimented by clients, who confided in me that they absolutely hated professionals who forced conversation during their treatments.

Check out this article about a salon in the UK that introduced a “silent appointment” feature.
Like I said: there’s more of us than you probably realize.

Um, WTF?!: Video shows deer crashing through salon window.

I’m sure this has made the rounds on social media, but a deer jumped through the front window of this salon, then slammed out the front door on its way out. The whole thing was caught on surveillance and I literally cannot even imagine. I watched it at least five times and had to pick my jaw up off my keyboard. If you're like me and don't do the whole social media scene, click the button and check it out.

Online booking for consulting appointments is back up! My availability is still extremely limited, but you can now schedule appointments again!

Audio episodes coming soon. The last few months, I've been too busy to record audio episodes. Instead of trying to record monthly, I'll be recording three episodes at once and releasing them at the same time, Netflix style. I'm currently working on getting so far ahead on content that I can release episodes in tandem with the articles, but I likely won't be there until January. Until then, prepare for an upcoming deluge of podcast episodes.

No events in 2020. I've already been asked by several people if I'll be at any of the shows next year. I will not. (I'm trying to do this whole thing where I don't take on more than I can handle, and right now, I'm already beyond capacity.)

I'm trying to get better about using The Community as a dumping ground for notable email questions. This month, I've posted two new ones , but I will be posting more this week.

Remember, as VIP members, you guys have full access to The VIP Community. Whenever anything new is submitted, I receive an email notification and post a reply ASAP. Take advantage of it!

So, I’m turning 34 this February, but I still feel like I’m at least ten years younger. This weekend, I learned the hard way that I’m so not 20 anymore.

How? Well friends, I tried to move a bookshelf alone and herniated a disk in my spine. It hurt so badly that I lost consciousness. I am so traumatized from this that I have been telling every one of my friends (most of whom are my age), to never move furniture alone. If my husband worked outside the house, I’m not sure what I would have done, since I literally could not move my legs or spine.

So here I am, popping prednisone and looking at six impossibly long weeks of recovery time, delivering this warning to you: Your age-imposed physical limitations will creep up on you.

In our industry, our bodies take a real beating. Our hips, knees, and shoulders break down quick. Our wrists, necks, and spines are more prone to injury due to repetitive motion and holding awkward positions throughout our shifts.

Can you afford six weeks of recovery?
Can you afford to miss work for physiotherapy?

Forget the financial aspect: can you psychologically handle not doing things for that long? (Full disclosure: I have been lying in bed agonizing over the things I had planned to do after moving those bookshelves since Saturday—painting the wall and installing a new shelving system. The fact that those things aren’t done is killing me.)

Anyways, don’t be like me. Treat your body carefully.