Fake News

While attempting to research this article, I came upon far too many opinion-based libertarian lobbying blogs, so I’m anticipating some severely misinformed questions in the comments—and I don’t blame anyone for them. The fear-mongering is ridiculous; I saw one writer lamenting the fact that “the new law” disallows workers from determining or waiving their status, but that has always been the case.

Workers can’t choose exploitative work arrangements that violate federal law any more than people can sign contracts agreeing to unlawful arrangements. 

Several writers argued that this is a “major change” that will bring disaster to workers, business owners, and the economy, but what they’re really telling you is how little they understand the world we’re all living in, where misclassification and wage theft are the default business strategy, not rare exceptions, and where business owners are not receiving the education, guidance, or support required to be both compliant and profitable. 

If you’ve been pushed to the brink of panic by these clowns, take a deep breath: at no time has the definition of the word “independent contractor” changed in this country. The rules provide guidance to help workers and employers understand the law (that is literally their entire purpose for existing), but the actual law in this area is very well-established. Only people who want to lean on ignorance as a defense for their bad behavior consider clarity a threat to their freedom. 

The DOL’s rule change simplifies classification, making it more accessible and comprehensive. This should make violations far less likely, which is a win for everyone involved.

The “new” method is more illustrative; it explains itself fairly well. The way each factor is broken down and clarified—with two examples for each—should make it easier for employers to recognize improper use of the independent contractor classification and avoid the consequences associated with misclassification. 

The Difference Between Laws and Rules

The first thing you need to understand is that laws and rules are not the same thing, and anyone attempting to conflate the two deserves serious side-eye.

Laws are codified by legislative bodies (state or federal) and must be adhered to by everyone who falls under that legislature’s jurisdiction.

Rules are detailed frameworks developed by various government agencies to provide guidance. They clarify the law so the public understands how to comply and so the judges who must enforce the law understand how they are applied in practical scenarios. Various agencies are required by law to enforce these rules. (A judge can’t decide not to apply these six factors, for example.) 

The core legal definition of an independent contractor under the FLSA hasn’t fundamentally changed.

The rules help to clarify the DOL’s position and provide insight into how the law should be interpreted and applied; the rule change doesn’t change the law itself. The statutory law and underlying regulations here are very much the same—only the analytical lens through which worker classification is determined has been changed.

Brief History of Worker Classification Guidelines

In 2021, the DOL moved from a five-factor “economic reality” test to a system weighing two core factors: the nature and degree of control the employer had over the work, and the worker’s opportunity for profit or loss. 

The DOL believes this approach didn’t “fully comport” with the text and purpose of the FLSA as interpreted by the courts because the rule included provisions that conflicted with longstanding case law and the established guidance provided by the DOL. Overall, the rule narrowed the test by excising factors the DOL considers relevant when making a determination about a worker’s status. Plus, it departed from decades of case law, which could confuse workers and business owners. 

For those who know a thing or two about US labor and employment laws, the real problem was the prohibition against examining whether the work performed was “central or important” to the employer’s business. It’s a pretty critical element to consider. 

Ultimately, the tests are similar in the following ways, per the DOL’s FAQs:

Both rules identify economic dependence as the “ultimate inquiry” of the analysis; both rules provide a non-exhaustive list of factors to assess economic dependence; and both rules caution that no single factor is determinative. Both rules also clarify that economic dependence does not focus on the amount of income the worker earns, or whether the worker has other sources of income.

The important thing to know is that none of this is likely to negatively impact anyone who was in compliance to begin with.

Per the WHD’s guidance regarding the 2024 Worker Classification Rule:

The Department emphasized that “because this final rule is aligned with longstanding case law, the Department does not anticipate that independent contractors (who sometimes also self-identify as freelancers or small/micro business owners) who are correctly classified as independent contractors under current circuit case law would be reclassified applying the guidance provided in this rule.” 89 Fed. Reg. 1659. 

If your practices currently align more closely with the looser 2021 Rule, it’s time to reevaluate to ensure you’re still in compliance.

The Six-Factor Test for Determining Worker Classification

Factor 1: Opportunity for Profit or Loss Depending on Managerial Skill

Does the worker exercise managerial skill that affects their economic success or failure? Can the worker negotiate the pay, determine whether they accept or decline jobs, and choose the order and/or time in which the jobs are performed? Does the worker engage in marketing, pay for advertising, or take efforts to expand their business or secure more work? Does the worker have the authority to hire others, purchase materials and equipment, or rent space?

• Interpretation: This factor evaluates whether the worker actually exercises independent effort and decisionmaking, without the employer’s influence or an expectation to comply with the employer’s requirements or limitations.
• The Focus: Does the worker call the shots when it comes to their business, or is their independence theoretical at best?

Factor 2: Investments by the Worker and Employer 

Are any of the worker’s investments capital or entrepreneurial in nature?

• Interpretation: Costs borne by a worker to perform their duties are not considered evidence of capital or entrepreneurial investment. This factor examines the degree to which the worker makes investments in their own business’s growth. 
• The Focus: Does the worker make similar types of investments as the employer or investments of the type that would allow the worker to operate independently in the worker’s industry or field?

Factor 3: Degree of Permanence of the Work Relationship 

Is the work relationship indefinite or continuous in duration?

• Interpretation: This factor examines the nature and length of the work relationship.
• The Focus: How independent is the worker, as a matter of economic reality?

Factor 4: Nature and Degree of Control 

Who sets the worker’s schedule? Does the employer supervise or monitor the worker’s performance? Is the worker limited or prohibited from working for others? Who sets the service prices? Who controls the marketing?

• Interpretation: This factor aims to determine whether the worker has sufficient autonomy to be considered an independent contractor.
• The Focus: How much control does the employer have over the performance of the work and the economic aspects of the working relationship?

Factor 5: Extent to Which the Work Performed is an Integral Part of the Employer’s Business 

Is the work critical, necessary, or central to the employer’s business? 

• Interpretation: This factor does not depend on whether any individual worker in particular is an integral part of the business. 
• The Focus: Is the work they perform an integral part of the business?

Factor 6: Skill and Initiative 

Does the worker use specialized skills to perform the work? Do those skills contribute to business-like initiative? Is the worker dependent on training from the employer to perform the work? If the worker brings specialized skills to the work relationship, it indicates that the worker is an independent contractor.

• Interpretation: Any worker can be skilled, so the fact that the worker is skilled doesn’t indicate one status or the other.
• The Focus: Does the worker use their skills in a manner that evidences business-like initiative? 

The Totality of Circumstances

None of these factors alone are considered definitive. Instead, the DOL looks over the totality-of-circumstances, analyzing the entire working relationship before making a determination.

The primary question the test seeks to answer is this: As a matter of economic reality, is the worker dependent on the employer for work, or are they truly in business for themselves? (See: Fact Sheet 13.)

According to the DOL’s announcement (which I recommend reading in full), the March 2024 Rule returns to “an analysis that is more consistent with judicial precedent and the Act’s text and purpose.” Once again, these are not “new laws,” they merely clarify the application of existing laws. 

Regardless of your situation or position in the salon, it’s worthwhile to read every bit of guidance provided, whether the law itself is changing or not. (I say it a lot, but know your rights.) Once you understand the factors, you’ll know misclassification when you see it. 

In case you missed it, back in June of 2023, Christine Geiger, a salon owner in Traverse City, Michigan, decided to drop the following “hot take” via her salon’s Facebook page:

“If a human identifies as anything other than a man/woman please seek services at a local pet groomer. You are not welcome at this salon. Period. Should you request to have a particular pronoun used please note we may simply refer to you as ‘hey you.’”

One can assume she must have thought she was being very clever and very funny, but shortly after, three people filed certified complaints. Christine doubled-down, saying she “has no problems with the LGB. It’s the TQ+ that I’m not going to support,” she posted. “For those that don’t know what the + is for, it’s for MAP (Minor Attracted Person aka: pedophile).” 

The plus sign in the LGBTQ+ acronym is actually a placeholder for queer identities who don’t neatly fit into the acronym, but none of them are in any way holding space for child abusers. 

Christine defended her stance, saying small business owners should be able to serve whomever they wish. Given the timing, she was likely emboldened by the Supreme Court’s ruling involving 303 Creative, a web designer who refused to make wedding websites for same-sex couples, saying it would violate her sincerely held religious beliefs because, by doing so, she would be forced to express a message celebrating and promoting a conception of marriage that she believes is contrary to God’s design. 

The court held that a person’s First Amendment rights would be violated in situations where they are forced to express a message contrary to their religious beliefs. The court did not say that business owners may ignore state or federal anti-discrimination laws. The constitutional carveout applies only to expressive conduct: behavior designed to convey a message. (It’s also important to note that the case was based on a theoretical scenario; there were no actual aggrieved customers involved.)

As the news about Christine’s Facebook post spread—first in Traverse City community groups and then nationally—protesters stood outside the salon chanting and holding signs. The salon’s Google and Yelp pages were flooded with negative reviews. Christine’s distributor, Jack Winn Pro, revoked her authorization to represent their brand or sell their products. 

“Jack Winn Pro strongly believes in and supports LGBTQ+ rights. We are committed to creating an inclusive, respectful environment for all – regardless of sexual orientation, gender identity, or any other characteristics that define who they are,” the company posted. 

Apparently this free speech Christine did not like very much. She attempted to sue Traverse City and the three people who filed complaints (whom she accused of being “state actors”). 

After a brief attempt at turning her salon’s Facebook page into a “political memes page,” Christine made her business’ social media accounts private. Phone calls to the salon went straight to a voicemail box that was not accepting new messages. 

A business that chooses to sell to the public assumes a duty to serve the public without unjust discrimination.

Justice Sonya Sotomayor

Christine’s case against Traverse City and the alleged “state actors” was dismissed last week.

Today, we’re going to talk about freedom of speech, gender diversity, and how to navigate social shifts that might be a bit hard to adjust to if the only information you’re receiving is from biased partisan sources. Ultimately, this post aims to correct any misinformation you may have been exposed to. 

This article provides a basic overview explaining how gender differs from sex, why you should care, and how you can ensure your salon is an inclusive place of public accommodation.

What Freedom of Speech Is (and Isn’t)

The first and most important thing to know is that freedom of speech doesn’t guarantee you immunity from consequences. The First Amendment is why you can complain about your government without fear of secret police pulling up in a windowless van and snatching you up off the street. It’s why Congress can’t mandate church attendance. It’s why people like me can post things on the internet without running them past a government censorship board for approval first. It’s why people were allowed to pick up signs and protest outside Christine’s salon. It’s why Christine and others like her can petition the government when they feel it’s not acting in their best interests.

The First Amendment does not shield all forms of expression unconditionally.

The US has a high threshold for restricting speech, but certain categories of speech—direct threats, incitement, obscenity, and defamation—are subject to regulation. Christine Giger’s dehumanizing FB post is hate speech (“abusive or threatening speech or writing that expresses prejudice on the basis of ethnicity, religion, sexual orientation, or similar grounds”), which is not constitutionally protected.

As a private citizen, there’s nothing stopping Christine from expressing her views, but she operates a business—a place of public accommodation—and she conveyed a discriminatory message through its social media profiles. 

Places of public accommodation (which Studio 8 most certainly is) are not allowed to discriminate against protected classes, as outlined in Title II of The Civil Rights Act of 1964. 

The Civil Rights Act is why you can’t ban Black or Hispanic clients. It’s why you can’t refuse services to Muslims, French people, or everyone presenting as male. Christine may not “want the woke dollar,” but if a business chooses to profit from the public market, which is established and maintained by the state, the state may require the business to abide by a legal norm of nondiscrimination.

Unfortunately, our federal government hasn’t yet included transgender people in these protections, but Christine’s state of Michigan sure has.

Michigan’s Elliott-Larsen Civil Rights Act prohibits discrimination in employment, housing, and public services based on religion, race, color, national origin, age, sex, height, weight, familial status, or marital status. The Elliott-Larsen Act was amended in 2023 to add greater protections over sexual orientation and gender identity. Unfortunately, the legislation did not take effect until February 2024, long after Christine made a strong case for the amendment’s necessity.

Understanding Gender Identity

For the rest of this section, I’m going to assume that you (the reader) know almost nothing about the queer community. (If you already know these things, consider this a refresher.) Let’s get some foundational facts out of the way:

Biological sex and gender identity are not the same thing. 

Biological sex refers to chromosomes, hormones, and genitalia—features none of us chose but all of us are born with. Biological sex is typically binary—male (XY) or female (XX)—but exceptions do exist (we can leave that to the geneticists, all you need to know is that biological sex itself isn’t quite as binary as most people believe).

Gender identity is a complex and multifaceted concept relating to social roles and expectations surrounding the concepts of “masculine” and “feminine” within our culture. Over the years, society has come to recognize and acknowledge a spectrum of gender identities, each unique and valid in its own right. Regardless of your biological sex, your identity sits somewhere on this spectrum (masculine at one end, feminine on the other, and non-binary in the middle).

Many people are cisgender, meaning that they identify with the gender role associated with their biological sex, and they don’t feel caged by the expectations society imposes on people with their biological sex.

Transgender people, by contrast, do not feel their biological sex and gender roles are in alignment. (Yes, it really is that simple.) 

Traditional gender roles assert a heteronormative patriarchal system, where people must dress and behave a certain way based on their biological sex. These rules are messy, complicated, and constantly changing. However, we have been pushing against the borders of these restrictive boxes for decades. Katherine Hepburn offended and outraged the public by wearing pants (“the gateway drug to female perversion”) in the early 1930s. More recently, Billy Porter slayed in a tuxedo dress at the Oscars in 2019. We are no longer content to “push” these arbitrary and oppressive boundaries; we are dismantling them entirely.

Hepburn did a radical thing by refusing to wear dresses in the 1930s, when women were arrested for wearing pants in public and charged with “masquerading as men.” This fact—that women were arrested by police and sent to jail for wearing trousers—seems absolutely ludicrous to us now, as it should.

This is America, land of the free. 

If you genuinely believe in freedom of speech and freedom of expression (as Christine claims to), you should also believe that people should be free to wear whatever clothing they want, just as they should be free to use whatever pronouns they want. 

At no point, in any of this, are you required to endorse pedophiles: literally nobody is doing that, and if they are, they should be reported to law enforcement immediately.

The patriarchal gender role system was designed to reinforce male dominance and control over women. These structured gender roles placed men in positions of authority and control in both the public and private spheres. Until the 19th century, laws reflected and enforced male dominance. Women were denied the right to own property, enter contracts, or vote. Women were socialized into submissive and nurturing subservient roles, denied opportunity and education, creating conditions that, in addition to forcing heterosexuality, were designed to keep them dependent on men, be it their fathers or husbands. 

This is our history, but these beliefs have no place in our modern society, especially in a country that values equality and freedom of expression as much as ours. Countries that weaponize the law against their citizens based on their biological sex are not nations where any American who values freedom of expression and personal autonomy would want to live.

So, to recap:

• Forcing people to wear clothing based on their biological sex is silly.
• Forcing people to adopt attitudes, values, and sexual preferences based on their biological sex is silly.
• Forcing anyone to conform to a set of nebulous, arbitrary societal rules and expectations based on the biological sex they were assigned at the moment of conception is absolutely silly.

The problem we have as a country is that most people can clearly see the first two ideas as backward and archaic, but some—like Christine—are still struggling to grasp the third.

The Importance of Inclusivity in Salons

Beauty salons and barber shops have a long, rich history as inclusive community spaces where political discussion and grassroots organization happen. From the days of the Madam C. J. Walker Company, change has taken root in our chairs—the women’s liberation movement, the civil rights movement, and now, the LGBTQ+ rights movement. Beauty salons have played a huge but hidden role in shaping our society. 

Salon owners are community leaders, and we should not take that for granted.  

As beauty professionals, our entire business is about personal expression. People come to us because we can make their outer appearance consistent with their inner identity. This is the core of what we do. Personal expression is a fundamental aspect of individual autonomy, and infringing on that right of expression is at extreme odds with our core values of personal freedom and empowering individuality. 

Opposing anyone’s human right to be who they are runs counter to the fundamental ethos of our industry.

Salon owners have an ethical responsibility to create a welcoming environment for all. A discriminatory environment undermines public trust, but it’s also a betrayal. Christine and others like her reflect negatively on those of us who are working hard to ensure our profession is held in high esteem. (I hope I’m conveying exactly how disgusted I am—because I do take this personally, and so should you.)

Every human being who walks into your salon deserves to be treated with respect and dignity. This is what it means to be a professional. 

Salon owners who discriminate face a variety of very unpleasant legal consequences. For instance, Michigan salon owners who publicly share Christine’s sentiment would run afoul of the Elliot-Larsen Civil Rights Act. Individuals who can prove they were discriminated against could file civil lawsuits, pulling the salon owner into lengthy and tremendously expensive proceedings that will certainly destroy the salon’s reputation and its budget. Federal agencies could step in and impose penalties or force the salon owner to take corrective actions.

Inclusivity Best Practices for Salon Owners

Alright, now we can talk about how you can create an inclusive salon that welcomes and supports everyone. 

Advertise inclusivity. When you’re part of a privileged class, it’s easy to overlook or underestimate the challenges and fears faced by those who routinely experience discrimination.  It can be incredibly difficult to fully grasp the depth and breadth of the obstacles and anxieties that individuals from discriminated-against groups endure daily. At this point in our nation’s development, it isn’t enough to silently consider your salon a safe space. 

Visible signage advertising inclusivity is a powerful statement of support and a commitment to creating a safe and welcoming environment for all clients. 

Creating client-facing non-discrimination policies is a great start, but marginalized clients are more likely to notice overt invitations (a cute flag or a window cling, for instance). This signage significantly reduces the anxiety and hesitation a trans person might feel about entering a new space.

When possible, show inclusivity in your marketing materials too—and please don’t limit it to the performative song and dance every business does throughout the month of June.

Every month is Pride Month if you’re truly an inclusive business.

Eliminate sex-based pricing. If you haven’t done away with sex-based pricing ($15 for men, $50 for women), now is the time. 

While sex-based pricing isn’t universally illegal, in some states, general consumer protection or anti-discrimination statutes might be interpreted to cover gender-based pricing, particularly if such pricing can be demonstrated to be discriminatory without a basis in significant differences in the cost or delivery of the service. California passed the Gender Tax Repeal Act, which made it illegal to discriminate against customers based on their gender in terms of pricing. Businesses in California must provide a price list for services, and any price difference must be based on the amount of time, difficulty, or cost of providing the service, not the customer’s sex.

My colleague Jaime Schrabeck and I have advocated gender-neutral pricing for years. If you want to learn more about why, read this article Jaime wrote for Nailpro. (Both of our salons have gender-neutral pricing, so if you have any questions, feel free to drop them in the comments.)

Train your employees on LGBTQIA+ issues, terminology, and sensitivity. If you felt a twinge of discomfort at the thought of having to gather your employees to discuss how to treat queer people like human beings, that’s exactly why you need to do it.

In the US, a lot of trans people still feel uncomfortable coming out, for good reason. Transgender individuals face disproportionately high rates of violence compared to the cisgender population. In 2022, the U.S. Transgender Survey by the National Center for Transgender Equality found that 47% of transgender people have thought about moving to another state because their state government considered or passed laws that target them for unequal treatment.

In Conclusion

Change is hard. I’m from a small town populated almost entirely by sweet, church-going snowbirds and retirees, so I know how strange and overwhelming this can seem to people who don’t often interface with “the gays.” The concept of gender is so ingrained that seeing anyone subvert our expectations can be alarming at first. Hateful and false rhetoric amplifies the fear and confusion, encouraging our worst impulses.

It’s up to us to do better; nobody said it would be easy.

I understand that this can be hard, but do you know what I would argue is harder? Being the parent of a trans kid, having to worry about the Christines in this world, who are quick to categorize them as subhuman perverts and sexual deviants.

It’s easy to stay silent while people make racist, sexist, xenophobic, homophobic, or transphobic remarks in our chairs or in the break room. It costs us nothing to be neutral, to save ourselves from ridicule or judgment, to protect our salons from becoming collateral damage in a perpetually aggrieved client’s quest to be Facebook Villain of the Day. As a salon owner, I get that. I truly do.

I’m asking you to do the hard thing anyway, because it’s the right thing to do, and now is the time to do it. Make an effort to learn. Maybe also take a second to recognize and respect your professional “ancestors,” who understood that our salons are sacred, intimate spaces where people from diverse backgrounds come together to share and exchange ideas. Catalyzing shifts in societal norms is an important part of our industry’s history and our role in American society. Our communities and our kids deserve nothing but the best from us.

Now is the time to start seeing other people as humans whose chromosomes don’t dictate who they are allowed to be. Appreciate the things that make us individuals. If your love for other people is conditional on them being the exact person you want them to be, figure out why that is. Genuinely try to understand your discomfort, preferably with help from some queer allies who are open to answering any questions you have. 

Additional Resources

If you want to learn more about the history of the trans community in the beauty industry and how you can be a better ally, here are several links to get you started: 

The Salon Professional Academy – Gender Equality in the Beauty Industry
PBL Magazine – Why The Beauty Industry Needs To Do More For Trans And Non-Binary Clients
Salon Services Pro – How Are Salons Creating Safe Spaces?
Boulevard – The Ongoing Legacy of Trans Women in Beauty 
Al.com – Jody Suzanne Ford, trans Birmingham hairdresser shot to death in 1977, paved way for others to live unafraid

In some ways, I sympathize. None of us should be forced to learn skills we don’t need. I get it. I really do.

But unlicensed people don’t get to argue that professional licensing shouldn’t exist. Without a license, Jasmine doesn’t have the training to understand all of the risks an unlicensed person in a salon poses to the general public or the massive liability they pose to the salon owner. 

It’s true that licensing requirements were heavily lobbied for and influenced by for-profit beauty academies looking to bloat their bottom line, but regulations requiring education and licensing were also created to attempt to solve problems and establish a shared value system around objectively good practices.

While each state has different regulations, most overlap in a few key areas. By and large, every regulated state agrees:

• Clients have the right to expect a clean and safe salon experience.
• Those seeking to enter the beauty industry have the right to an education sufficient to guarantee that they can competently perform their duties in the salon while protecting themselves and the public from communicable disorders.
• Professionals and clients have the right to a clean, compliant workplace.
• As an industry, professionals are obligated to ensure all of the above or face penalties including fines, license suspensions, and—in extreme cases—permanent license revocation.

Our state board regulations ensure that professionals and clients alike understand how and why we disinfect our tools between clients, what the standards for salon cleanliness are, what licensing documentation they should expect to see, and where that documentation should be posted in the salon. 

Our licensing requirements guarantee that professionals can—at a very minimum—respond to common first-aid situations (cuts, burns, falls) capably, mix and use state-approved disinfectants properly, and identify symptoms of communicable skin disorders. They also ensure that we understand and practice Universal Precautions. 

These regulations aren’t designed to necessarily serve us; they’re designed to protect the public, including the business owners who are legally liable for anything a service provider does in their facility.

I agree that experience isn’t worthless. However, just because you’ve been doing something for years doesn’t mean you’ve been doing it correctly or safely. Without professional training, you won’t learn that until you happen to make a very, very big mistake (like causing a pink-eye outbreak because you didn’t know not to reuse mascara wands). 

You don’t know what you don’t know.

State Board licensing standards and regulatory requirements are the methods by which our state legislators reassure the public and our employers that we should know what we’re doing—and that if we screw up, there are mechanisms in place to hold us professionally liable for it. The public shouldn’t have to rely on local courts to determine gross negligence when a framework can be provided that guarantees a professional who acts recklessly or carelessly will face professional consequences, like losing their ability to ever legally work in a salon again. These regulations provide protection against malpractice. They’re meant to strongly incentivize licensed professionals to play by the rules and take their obligations to their community seriously. You aren’t supposed to like them.

Instead of arguing that licenses shouldn’t exist, Jasmine should be fighting for the creation of smaller licenses for specialized professions. There’s no denying that makeup artistry is a separate profession from cosmetology. Makeup artists could go their entire careers without ever having to learn anything about mixing chemicals, using and disinfecting sharps, or applying hot wax to a client’s skin. These are things makeup artists don’t do.

Precedents for crafting smaller, more specific licenses already exist. Various states in the U.S. have introduced specialized licenses for services such as hair braiding and body wrapping, acknowledging that these professionals have different needs compared to full cosmetologists. This move towards specialized licenses recognizes the unique skills and training required for specific services, making it more accessible for professionals to enter the industry without undergoing extensive training irrelevant to their specialization.

Does a professional who plans to specialize in braiding need to spend 300 hours learning how to do manicures and pedicures? No. Because that isn’t part of their job. Why should a makeup artist be required to learn how to do hair and nails?

It’s tough being caught in the catch-22 of needing to work to pay for the licenses but needing the license to legally work. Instead of limiting herself to keeping her makeup business as a side-hustle, and risking legal repercussions if caught, she needs to think outside the box and find a legit way to get her needs met and her career on the best possible path.

If I were in Jasmine’s position, I would petition for alternative certification programs, advocate for specialized licensing, and collaborate with the board and other industry peers. It’s far past time for our industry to find innovative, accessible pathways to professional legitimacy that align with individual career goals and legal requirements. 

Today, the salon owner charged my client’s services before the service was over. She refused to give me the money and told me she would put it towards rent, but I never agreed to this, nor did I agree to her taking a percentage from both the sale and my tip.

When I said that I wasn’t going to tolerate this, she claimed that it couldn’t be helped because the client paid with a gift card. I know the client didn’t pay with a gift card, but that’s beside the point, because the owner knows I don’t accept her salon’s gift cards. (Besides that, nowhere in my lease does it say anything about her stupid gift cards!)

After I caught her in the lie, the owner said I’m no longer allowed to receive any walk-ins. Is this legal? Can she seriously refuse me walk-in clients?

I’ve already addressed this topic, but your story provides important insight.

You did everything right. You took every step you could to prevent being taken advantage of. When your landlord pushed your boundaries, you responded immediately. Few have the confidence to do so, and I’m glad to hear you did. Her treatment of you is nothing more than childish, petty retaliation. I’m embarrassed for her.

However, unless your contract states otherwise, you aren’t owed walk-in clients. (More about that here.)

What can you do about it? Unfortunately, not much. You could bring her to small claims court, but the filing fee will likely cost more than the disputed amount, and unless you really want to make a point, it might not be worth your time to pursue.

In these situations, the only thing you really can do is tell her to make things right, or you’ll warn others, starting with your fellow renters.

If she refuses, make good on that promise. Only state what you can confirm—what you’re willing to swear to in court under threat of perjury. Don’t embellish or get creative. Stick to the facts, and keep your emotions in check.

If she threatens to bring you to court—good. Let her. Be sure to update us so we can hear how she rationalized the theft. 

I’m sorry this happened to you. Sometimes, even when you do everything right, you aren’t entirely safe, and even if you’ve clearly been wronged, you might never see justice.

Take a deep breath. Now read this handy list.

Dress conservatively and professionally. No sandals. No jeans. No tank tops. No t-shirts. Dress like you’re going for an interview at a law firm or to a congressman’s funeral. This is not the time to make a fashion statement. Dressing sexy will win you no points here. If you chose to wear a skirt, make sure it’s no shorter than two inches above your knee.

Courts are weirdly formal places. Prepare yourself accordingly.

Keep your makeup minimal and natural. Don’t get crazy with that eye shadow. You want to be taken seriously, so don’t walk into the courtroom with you eyelids covered in rainbow glitter. Remember, you’re entering a place where people tend to care a whole lot about presentation and decorum. Some judges read a little too deeply into fashion choices and what they say about people.

Remove the metal from your face. If you normally wear facial piercings, take them out. They aren’t appropriate to wear to court. I cannot reiterate this enough times:

As stupid as it is, appearances matter. A lot.

Don’t wear a belt or complicated shoes. You will have to remove your shoes and walk through a metal detector before you can enter the courthouse. Make it easy on yourself by leaving your belts and metal accessories at home and wearing flats you can slip into and out of easily. Don’t create unnecessary stress. You’ll likely be a hot mess of nerves to begin with.

When it’s your turn to sit in front of the judge, follow these rules.

Don’t speak unless you’re spoken to. Never show emotion during your opponent’s testimony. You can be nervous, sad, and scared. You cannot be angry, loud, or disrespectful. Judges have zero patience or tolerance for belligerence.

Don’t roll your eyes, sigh, or draw attention to yourself.

Even if the other party lies through their teeth, keep your mouth shut and your attitude in check. Write down your objections and bring them up when it’s your turn to speak. Put on your best poker face and be patient.

Always address the judge with “Your Honor” or “Sir” or “Ma’am,” and never use slang or profanity. When you’re asked a question that requires a yes or no answer, always say “yes ma’am/sir/Your Honor” or “no ma’am/sir/Your Honor.” Never say, “yeah,” “nope,” or “I dunno.”

Don’t go in demanding justice. Do not bark orders at a judge or demand anything from them. Sure, your tax dollars pay their salary, but they don’t work for you. 

You’re at court to reach a peaceful, reasonable resolution, not to fight with your opponent.

Both of you believe you’re right. You can’t come to an agreement, so you are in court to ask the judge to come up with a fair solution based on the information and evidence that each of you collected. Approach it from that perspective–it’s not about winning or losing but having a neutral party evaluate each of your positions and make a decision for you.

You can think that your opponent’s actions were wrong. You can feel your opponent’s action were wrong. You don’t know they were wrong or not. The judge determines that. (Even if you really do know and you have fistfuls of statutes and evidence to support that argument, never go in with the arrogance of assurance.)

In small claims court, don’t be afraid to tell the judge that you’ve never been in court before and you may have questions during the proceedings. Small claims courts are generally pretty mellow. Nobody has attorneys and judges don’t expect you to be competent in court procedure. If you don’t understand what a judge asks of you or what they mean, politely ask for an explanation.

Keep your testimony brief and only testify to what you can prove. This is so, SO important. Do not pop off with a bunch of irrelevant, unverifiable testimony. If you cannot prove a claim, the judge will likely disregard it.

Bring evidence in triplicate. One for you, one for the judge, and one for your opponent.

A lot of professionals panic at the thought of going to court. Don’t be scared. The majority of the time, you’re going to end up in small claims, where the stakes are low and the process is pretty informal. You don’t need an attorney, the rules are relaxed, and if you’re the plaintiff, generally, the worst that can happen is that your case gets dismissed and you lose your filing fee. No biggie. In other proceedings, you’ll have an attorney representing you and doing all the heavy lifting, so relax and focus on controlling the one thing you can control—yourself.

Have you ever been to court? What for? Were you scared? What happened? Tell us about it in the comments!

Prepare for an extended medical absence right now, even if you don’t think you have to.

If you live in the US, in particular, you need to get very good at saving and managing your money. Our safety nets are full of holes, so you have to build your own.

Save. Save. Save.
For the love of god, please save.

I know it can be difficult to build a savings balance when you work in our business—an industry plagued by wage and labor abuses that often put workers at a significant disadvantage—but if you don’t have exceptional insurance and money saved to cover your living expenses for at least a few weeks, you’re one unexpected medical crisis away from financial ruin.

Don’t rely on the generosity of friends and strangers. Crowdfunding campaigns aren’t a substitute for health insurance and/or savings. Try to accumulate enough money to cover 3-6 weeks of basic living expenses. Once you have, don’t touch it. Forget it exists until you truly need it.

Provide notice as soon as possible.

In the event of a foreseeable absence (maternity leave and/or scheduled surgery, for instance), give your employer and your clients plenty of notice. Employees should be working with the salon owner and/or management to determine together exactly how to communicate the news to the clients and how to coordinate the professional’s departure and return.

Template: Absence Email Notice to Client

Dear [CLIENT NAME],

[YOUR NAME/I] will be out of the salon from [DATE] until [DATE]. Should you require service in my absence, schedule your next visit with [COWORKER/COLLEAGUE NAME]. You can expect [HIM/HER] to provide the same exceptional experience and outcome you’ve come to expect from [YOUR NAME/ME].

If you would prefer to schedule your appointment with [YOUR NAME/ME] before [HIS/HER/MY] leave begins, please call [SALON PHONE] as soon as possible. Existing clients are receiving priority booking until [LEAVE DATE].

Thank you!
[SALON NAME/YOUR NAME]

You don’t have to disclose the reason for your medical leave if you don’t want to, but most professionals who are having “maintenance” surgeries—those common joint repairs us veterans often require—do. (In those instances, our regulars have seen those inevitable operations coming a long way off, so the announcements come as no surprise to them.)

Whether or not to disclose the reason for your medical absence is your decision to make.

Employers can’t require you to give specific reasons. Should they disclose the reason without your consent, that disclosure could constitute an FMLA violation.

Ask for accommodations in advance.

When you return, will you require reasonable accommodations? For instance, if you’re having a spinal or hip surgery, you may require a floor mat or a cutting stool. If you’re giving birth and plan to breastfeed, you’re legally entitled to pumping breaks and a private space for expressing milk.

Give your employer plenty of time to make whatever changes and/or acquire things you may need to do your job comfortably. They’re required by the Americans with Disabilities Act to make reasonable accommodations, but you should be guiding them so they know exactly how to do so.

Renters will need to design their outgoing and incoming transition strategies themselves, which brings us to our next tip.

Overestimate your return date by a week or two.

Give clients a general estimate when they ask when you’ll be returning, but don’t be overly optimistic. You never know how things will shake out. Should your recovery not go according to your timeline, you’ll find yourself rescheduling a bunch of appointments when you least need that added stress in your life.

Ease back in.

In addition to ensuring you don’t face any unforeseen recovery complications, overestimating your return date allows you time to transition back to work. Professionals tend to not only underestimate their recovery time, they also overestimate their capabilities upon return. (As a workaholic and mother of five, I am so extremely guilty of this myself. Did I mention I gave birth this week?)

In our eagerness to return to work, we sometimes forget to take care of ourselves.

At first, schedule half days. Give yourself a little more time with each client. Be sure to take breaks, keep hydrated, eat an actual meal at lunch time (instead of inhaling it), and—seriously—take time to pee.

Listen to your body. If something doesn’t feel right, don’t try to power through, otherwise you risk complicating your recovery.

Don’t be a hero.

Shoulder, knee, and hip surgeries are common in our business. In my career, I’ve known several professionals who have returned to work perhaps a little too early and pushed themselves way too hard. They refused to use accommodations (like cutting stools), wouldn’t take breaks, and removed splints and other stabilization aids long before their doctors advised.

As salon owners and managers, we have no real authority when it comes to enforcing your doctor’s orders, and we hate seeing our professionals do things that complicate their recovery. Don’t come back to work until you’re sure you’re ready, ask for help if you need it, and don’t be too proud to request tools or furnishings that could help you work more comfortably.

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[VIP 2] The Industry's Education Solution

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Issue 1: Defining Practical Clinical Experience and Compensable Labor

Schools lose in court when they aren’t able to sufficiently prove that the tasks they’re having students perform are a necessary part of the education. If they can prove the students were only performing tasks required by the state board, they will prevail—the way the massage school did. (Supervision or no, the students were performing legally required clinic hours while an instructor was on the premises.)

Salon chores—clearing hair clogs out of shampoo sinks, mopping floors, and scrubbing toilets—are not part of any state board’s practical education requirements.

With that considered, we can easily draw a line between what constitutes practical and necessary parts of practice that should be included in a professional’s clinical education and what can only be described as compensable labor.

Reasonable: Expecting students to sweep hair after a cut.
Unreasonable: Expecting students to mop the floor.

Reasonable: Expecting students to disinfect their tools.
Unreasonable: Expecting students to scrub the toilets.

Reasonable: Expecting students to clean the shampoo bowl after rinsing out chemicals.
Unreasonable: Expecting students to disassemble the piping to remove hair clogs. (Which I have done as a student.)

Reasonable: Expecting students to keep their station drawers free of dirt and debris as required by state board regulations.
Unreasonable: Expecting students to count, dust, front, and stock retail inventory.

There’s a difference between sweeping the area around your station immediately after a service to keep a client from slipping (in compliance with regulations) versus scrubbing the school’s toilets. One is part of the service that state boards require of practicing professionals; the other is janitorial work that has absolutely nothing to do with the service. Schools can justify teaching and requiring state board compliance; they cannot use the students as unpaid janitors.

Issue 2: Clarifying the Scope of a Technical Program

As an industry, we need to agree on the role of our learning institutions. We’re placing some really unrealistic expectations on trade schools when we say things like, “Schools have to prepare you for the salon.”

Schools are responsible for ensuring their graduates can safely and competently perform the services their license authorizes them to perform.

Anything outside of technical education falls outside of the scope of a technical school and constitutes a waste of valuable instructive time. Schools aren’t responsible for producing professionals who know how to work reception, take inventory, and clean our salons. After all, they’re not licensing them to be receptionists, retail workers, or our cleaning crew. Students are being licensed as salon professionals and will be seeking employment as service providers. As salon owners and managers, we are responsible for communicating our expectations and training our employees. We are responsible for developing our talent.

To expect trade school educators to do our jobs for us is absolutely ludicrous.

Issue 3: Establishing Prohibitions and Enforcement Standards

I sincerely believe school owners (including those at Douglas J) had no malice in requiring their students to do menial salon work. Most facilities operate their clinic floor like a functional salon in every way. This seems very much like another instance of “monkey see; monkey do.” Every time one of these cases makes headlines, about half of the professionals involved in the discussion comment that their schools required them to do the same.

Our state boards will need to specifically prohibit schools from requiring students to perform menial chores during instructive time and assign penalties to those who do.

Many state boards have defined the scope of a cosmetology education so it shouldn’t require much time or effort to enact a common-sense prohibition against unrelated labor, but it will require professionals to organize and collaborate, to help their state board members determine a suitable course of action.

Nothing happens without your involvement.

In Part 3: The Industry’s Education Reconfiguration, we’ll talk about alternatives to the current education methods and how those alternatives might help eliminate the deregulation arguments entirely. For now, what do you think? Do you have any ideas or strategies for improving our schools?

Recently, students have been suing their technical schools, arguing that their time spent performing clinic work and other chores should be considered compensable time. In October, Detroit students fighting the Douglas J Aveda Institute won when U.S. District Court Judge Judith Levy ruled that they were considered employees under federal law. However, massage students fighting Steiner Education Group recently lost, with the 10^th Circuit Court of Appeals determining that the students were not entitled to wages for their time spent in training.

In Part 1 of this article, I’ll walk you through both of the cases and the decisions made. Then, in Part 2, we’ll define the line between valuable technical practice and compensable work and what we can do to keep schools from unintentionally crossing that line. In Part 3, we’re going to shake the whole system up with proposals for alternative education methods that could potentially end the push for deregulation forever.

If you own a school or attend one, don’t skip this.

The Douglas J Aveda Institute Case

What we know:

• Students testified that they were required to perform menial tasks during instructive hours, such as cleaning floors, restocking products, and doing laundry.
• Lawyers for Douglas J argued that manual labor was “part of the education.”
• Judge Judith Levy disagreed, stating, “These tasks are beyond the pale of the contemplated cosmetology education and training the plaintiffs sought,” and determined the students could be considered employees under federal law, which means they are entitled to be compensated.
• This ruling paves the way for class action, which could affect as many as 5,000 or 6,000 students at all seven of the Douglas J locations.

Unfortunately, without an official written decision, not much more information can be found regarding the specifics of the Douglas J Aveda Institute case, but from the information provided in the various news articles, we can see that the defendant’s argument that the manual labor was “part of the education” didn’t hold enough merit to convince Judge Levy.

Co-owner of Douglas J, Scott Weaver, holds a position on the Michigan State Board of Cosmetology, which does not test students on their ability to clean floors, stock retail and backbar, or do laundry. To pass inspections, schools are required to operate their facilities in accordance with board guidelines (school must be “clean, sanitary, and safe” at all times), but these guidelines do not specifically empower school owners to utilize paying students for janitorial work.

The Steiner Education Group Case

What we know:

• Steiner, like most technical beauty/massage schools, required students to perform services for paying customers as part of their clinical curriculum. These students were not compensated for performing clinic services.
• However, students allege that unlike most technical beauty/massage schools, Steiner educators did not instruct, monitor, supervise, or train the students whatsoever during clinic massages. Therefore, the plaintiff alleged that Steiner was using students as unpaid employees in a factory setting instead of providing any education in a clinical learning environment.
• Steiner disputed that the students received no instruction or feedback from educators and customers.

The Steiner case differs from the Douglas J case significantly. In the Douglas J case, students were made to perform trivial janitorial tasks without compensation. In the Steiner case, students argued that they were not given supervision and instruction during clinic hours and were therefore employees; not students.

In making this determination, the court decided to use six factors adopted from Reich v Parker Fire Protection Dist. to evaluate the economic realities of the parties’ relationship. They concluded:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
2. The training is for the benefit of the trainee;
3. The trainees do not displace regular employees, but work under close observation;
4. The employer that provides the training derives no immediate advantage from the activities of the trainees and on occasions his operations may actually be impeded;
5. The trainees are not necessarily entitled to a job at the completion of the training period;
6. The employer and trainees understand that the trainees are not entitled to wages for the time spent in training.

Steiner prevailed on all six factors, despite the fact that Colorado state law requires that clinical work be conducted under “immediate supervision.” More than half a dozen students who Steiner deposed from various schools around the country stated there was never any instruction, monitoring, observation, supervision, or training during clinic massages. Of the hundreds of pages of advertisements Steiner released, ninety percent of them did not inform the public that massages would be performed by students.

The plaintiff filed for an appeal, arguing that the court erred in applying Reich, but lost.  (You can learn more about why the court upheld its initial decision here.)

If the same test were applied to Douglas J, they likely would have passed on factors 1, 5, and 6, but probably would not have prevailed on any of the others.

The Debate

This issue polarizes beauty professionals and inspires some really strong emotional responses, with older professionals accusing younger professionals of being “lazy” and “entitled” and veteran professionals demanding that new entrants “pay their dues” the way they had to. In this section, we’ll address some of the most common statements and expectations.

“What a bunch of entitled, spoiled brats! Folding towels and scrubbing floors are a part of salon life that all professionals are expected to do!”

More than any other comment, a variation of this one pops up most frequently in this debate, so let’s get this out of the way immediately.

Students who are paying $15,000+ for an education but are instead spending their time doing menial work are not “spoiled” or “entitled.”

The “entitled” parties are those being paid thousands for tuition and thousands more for the services their students perform and who, despite receiving every cent of that money, still expect free janitorial work from their students.

Menial work will absolutely be expected of you in the salon, but you will be getting compensated to perform those tasks. You don’t need to pay tens of thousands of dollars to learn how to do them.

“It’s just a few hours a day. It’s not a big deal.”

Let’s say you’re paying $20,000 tuition and going to school in a state like Florida that requires 1,200 hours. You spent a total of just 40 hours this month doing reception, laundry, retail, and other chores that have exactly nothing to do with what you’re going to school for. In addition to not being paid, you’re paying the school $667 to do chores employers are legally required to compensate employees and interns to perform.

Still think it’s not a big deal?

We’re only considering the cost of 40 hours, which isn’t realistic at all. Many students are spending far more than 40 hours of their educational hours doing menial chores and other job duties that don’t contribute to their education.

“Schools should be preparing their students for salon life, so they should be doing the same chores we do.”

Schools are not responsible for teaching adult students how to operate washing machines, fold towels, answer phones, dust shelves, scrub toilets, or mop floors. When you promote this argument, you end up with salon owners who complain that because a student doesn’t come out of school as a perfectly trained employee of their salon (knowing how to handle the salon’s booking, inventory, or cleaning), that the schools aren’t competently training the students—a unfair criticism based on unrealistic expectations of the institution.

If schools are expected to bear the burden for getting beauty students prepared for “salon life,” are they also expected to prepare them for freelancing, business ownership, sales work, educating, platform artistry, online influencing, and all the other ways a professional may choose to work?

Many employers in our industry (and I’m guilty of this myself) are often aggravated by applicants who aren’t technically proficient right out of school. Professionals also complain about how they didn’t feel prepared coming out of school because they didn’t get enough technical education. Both of those complaints and expectations are absolutely reasonable. Maybe instead working behind a desk, inside a dispensary, or on their knees cleaning the floors, those students could be practicing the skills they’re paying to learn so none of us have anything to complain about. Instead, we’re placing the burden on the schools to teach the students how to be both model employees and technically proficient, within hourly limitations we nearly universally agree are inadequate.

This position undermines the argument for increased standards, causing a domino effect that ends with deregulation.

We cannot say on one hand, “Schools don’t provide enough practical instruction. We need more hours to ensure our students are better prepared to execute quality services safely,” and say at the same time, “Students should be made to spend their valuable, limited hours doing tasks completely unrelated to their education.”

If we’re going to make a legitimate argument for increasing graduation standards (particularly for specialist licenses like nails and skin care), we must demand that schools better utilize their time with the students.

Courts object to student exploitation for good reason. Schools push for states to increase hourly requirements and bake them into our regulations so they can qualify for federal funding. If the states realized how much of that time the schools argued was so “critical” to the student’s education was spent doing work that has nothing to do with the program’s curriculum, they would drop the hourly requirements, which would compromise the school’s ability to take federal aid, which would then compromise enrollment. It’s impossible to argue that every hour counts and is absolutely necessary to getting students prepared to meet minimum state board standards when your students are spending so much of that time answering phones, stocking retail, and doing the salon’s laundry during clocked instructive hours.

This argument also imperils licensing standards altogether by bolstering legislators’ arguments for deregulation. Our schools walk a fine line—hourly requirements have to be high enough to justify a cost that will allow their students to qualify for federal aid, but not so high that legislators can argue that they’re unreasonable. Until wages for the profession increase and attrition decreases, schools have no room to increase rates or hours, so ultimately, schools (and, by extension, our industry) are hamstrung.

Moving Forward

As more students choose technical schools over colleges, we need to address a few key issues.

1. Where do we draw the line between practical clinical experience and compensable labor?
2. How should we define the scope of our technical schools?
3. How can we ensure schools are prohibited from (and punished for) exploiting their students?

In Part 2: The Industry’s Education Solution, we’ll tackle those questions, but until then, what do you think? Should schools be allowed to use students as janitors? Should instructors be required to physically observe and participate during clinic hours? With regards to job training, where do the school’s responsibilities end and an employer’s begin?

It took four long years, but my next book can now be purchased! Avoid the mistakes that doom so many salon owners to failure. Salon Ownership and Management: The Definitive Guide to the Professional Beauty Business covers everything you need to know about establishing and managing a professional salon, including how to:

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• Choose the modern salon ownership option that’s right for you
• Ensure legal compliance
• Spend wisely and budget strategically
• Protect your investment
• Create profitable service protocols
• Calculate service prices
• Design competitive and sustainable employee compensation
• Advertise effectively and affordably
• Expand your business…and so much more.

Set your salon up for success by following this strategic planning system that guides you from concept through opening day and beyond, while giving you a thorough education in all aspects of the business of beauty.

If you want a signed copy, you can only purchase those from our store. If you would prefer to get yours from Amazon, click here.

I have more surprises coming your way early next year. If you haven’t joined our mailing list, I encourage you to so that you can be among the first to be notified!