§ 4304-12. Specific Application of Rules for Determination of Employment Status to Circumstance...
22 CA ADC § 4304-12BARCLAYS OFFICIAL CALIFORNIA CODE OF REGULATIONS
Barclays Official California Code of Regulations Currentness
Title 22. Social Security
Division 1. Employment Development Department [FNA1]
Subdivision 1. Director of Employment Development
Division 2.5. Withholding Tax on Wages
Chapter 1. General Provisions (Refs & Annos)
22 CCR § 4304-12
§ 4304-12. Specific Application of Rules for Determination of Employment Status to Circumstances in the Barbering and Cosmetology Industry.
(a) To determine whether services are performed as an employee or independent contractor refer to the common law rules contained in Section 4304-1 of these regulations. Section 4304-1 provides that “to determine whether one performs services for another as an employee, the most important factor is the right of the principal to control the manner and means of accomplishing a desired result.” Section 4304-1 lists factors which are evidence of the existence or absence of the right of control, to be considered when making an employment relationship determination. Section 4304-12 provides standards to be used when applying the common law rules specifically to a Professional licensed by the Bureau of Barbering and Cosmetology and is intended to make clearer those circumstances under which this individual is an employee or independent contractor.
(b) Definitions:
For purposes of this regulation, the following definitions will apply:
(1) A “Licensed Professional” is an individual licensed by the Department of Consumer Affairs and includes but is not limited to, barbers, cosmetologists, manicurists, electrologists and estheticians.
(2) A “principal” is defined as a cosmetology business operator or salon owner, or his or her agent or manager.
(c) Determination Elements:
To determine whether one performs services for another as an employee, the most important factor is whether or not the principal has the right to control the manner and means of accomplishing a desired result. Each of the following elements shall be considered to determine if an employment relationship exists. Not all elements listed in this section (4304-12) need be present to make a determination that a particular relationship exists. A determination of whether services are being performed as an employee or independent contractor will depend upon a grouping of the elements present that are significant in relationship to the services being performed. (See the following elements.)
ELEMENTS | EVIDENCE OF | WEIGHT | |
EMPLOYEE | INDEPENDENT | ||
CONTRACTOR | |||
(1) Policies, Rules or | The principal establishes the | The licensed professional | This element carries great weight. When the |
Procedures of | policies, rules or procedures | performs his or her services | principal sets policies, rules, or procedures |
Conduct | of conduct that are followed | independent of the | of conduct relating to the manner and means by |
by the licensed professional | principal's policies, rules, | which the licensed professional performs his | |
such as, prices, business | or procedures of conduct. | or her services, it strongly indicates a right of | |
hours, refunds, operating the | The licensed professional | direction and control. The right of the principal | |
cash register, work schedules, | establishes his or her own | to direct and control the manner and means by | |
lunch breaks, attendance, | hours of work, sets his or her | which the services are performed is the | |
dress code, customer complaint | own prices, directly collects | primary test used to make an employment | |
resolution, customer relations, | payments from his or her | relationship determination. If that right | |
and maintaining a | customers, directly schedules | exists, whether or not exercised, an | |
concession of beauty products | his or her clients' | employment relationship exists. Evidence that | |
to the general public. | appointments, personally | the principal does not have the ability to | |
resolves any customer | control the manner and means by which the | ||
complaints related to | licensed professional provides services | ||
his or her services, makes | is equally indicative of an independent | ||
refunds to customers from his | contractor relationship. | ||
or her own funds, and | |||
determines his or her own | |||
manner of dress. The licensed | |||
professional is not required to | |||
sell the principal's retail items. | |||
(2) Supervision on | The principal supervises the | The licensed professional | This element carries great weight. The principal's |
the Job | licensed professional. The | receives no instructions or | supervision of the licensed professional is evidence |
principal gives instructions | supervision from the | that the principal has the right to control the | |
that are followed by the | principal. The licensed | services, and that this right of control is complete | |
licensed professional. The | professional determines | and authoritative. The right of control, whether | |
principal or its representative is | whether or not a walk-in | or not exercised, carries the greatest weight | |
on the premises to observe the | customer will be served | in making an employment relationship | |
licensed professional's services. | and can refuse to serve | determination. Evidence that the principal does | |
The principal gives instructions | any customer. The licensed | not have the ability to control the manner | |
to the licensed professional | professional is fully | and means by which the licensed professional | |
regarding general | responsible for his or her own | provides services is equally indicative of an | |
clean-up activities at the | work, and personally resolves | independent contractor relationship. | |
business facility. The principal | any customer complaints | ||
assigns customers to the | related to his or her services. | ||
licensed professional. The | The principal does not | ||
principal reviews or evaluates | evaluate the licensed | ||
the performance of the licensed | professional in any way. | ||
professional by soliciting | |||
comments from customers. If | |||
the licensed professional is not | |||
performing satisfactorily, the | |||
principal can train, reassign, or | |||
terminate the licensed | |||
professional. | |||
(3) Training | The principal provides | The principal does not provide | This element carries medium weight. Training |
training. The principal requires | training to the licensed | received from the principal covering policies, | |
the licensed professional to | professional. If training | rules, and procedures, or instructions on how | |
attend classes, seminars or | classes, seminars, or | to perform the services, would indicate the | |
conferences. The principal | conferences are made | principal has the right to direct and control | |
pays for the training. | available, attendance is | the services of the licensed professional. | |
voluntary. Failure to attend | |||
carries no negative | |||
consequence. The licensed | |||
professional pays for any | |||
training made available. | |||
(4) Meetings | The principal arranges | The licensed professional is | This element carries medium to high weight. |
meetings. The licensed | not expected or required to | Like training, if the purpose of a meeting is to | |
professional is expected to | attend staff meetings. | convey policies, rules, procedures, or instructions | |
attend. The licensed | Failure to attend carries no | on performing services, it indicates that the licensed | |
professional is paid | negative consequence. The | professional is not in control of his or her services | |
for time spent in meetings. | principal does not pay the | and is an indication of employment. | |
licensed professional for any | |||
time spent attending meetings. |
Table of Determination Elements -Barbering and Cosmetology
(5) Work Schedules | The principal determines the | The licensed professional | This element carries medium to high weight. |
hours and days of the week the | sets his or her own hours of | When the principal determines the hours and | |
licensed professional will work. | work. The licensed professional | dates the licensed professional will work, | |
The principal requires the | sets his or her own | it is strong evidence of the right to control the | |
licensed professional to devote | appointments. The licensed | services of the licensed professional, and carries | |
full-time effort to production | professional has the right to | great weight in indicating an employment | |
of the principal's income. The | refuse any appointment | relationship. When the licensed professional has | |
principal maintains a common | or refer a client to another | freedom to determine when and how services are | |
appointment book. The | professional licensed by the | performed, and controls his or her schedule, | |
principal sets the hours of the | Bureau of Barbering and | medium to high weight is given toward | |
business, including opening and | Cosmetology. The licensed | independence. | |
closing times. The licensed | professional sets his or her | ||
professional has to perform his | own prices, directly collects | ||
or her services within the | payments from his or her | ||
principal's fixed business hours. | customers, personally resolves | ||
The licensed professional must | any customer complaints | ||
adhere to the work schedule set | related to his or her services, | ||
by the principal. The principal | makes refunds to customers | ||
requires the licensed | from his or her own funds, and | ||
professional to be on the | determines his or her own | ||
premises during certain hours | manner of dress. The licensed | ||
for a minimum number of days | professional is not required to | ||
per week. | sell the principal's retail items. |
ELEMENTS | EVIDENCE OF | WEIGHT | |
EMPLOYEE | INDEPENDENT | ||
CONTRACTOR | |||
(6) Location of Work | The licensed professional | The licensed professional leases | This element carries medium to high weight. |
(work station) | cannot render services for | his or her workspace from the | When the principal controls the location |
himself or herself or other | principal and pays a flat fee | where services are performed, it is strong evidence | |
business establishments without | for rent, rather than a | of the right to control the services of the licensed | |
restriction. The principal is in | percentage of income. The | professional and would be an indication of | |
control of the premises where | licensed professional has keys | employment. | |
the services are provided since | to the premises and is free to | ||
the principal holds the lease, | work any hours. The licensed | This element would carry less weight if the | |
owns the equipment, and holds | professional is free to provide | licensed professional is not allowed to possess | |
the establishment license. | services at other locations, | a key to the premises because the property | |
The licensed professional can | without informing the | owner (third party) prohibits the distribution | |
not sublet or relinquish his or | principal. | of keys to other workers or if the property owner | |
her chair (workspace). The | dictates the hours of operation (shopping mall). | ||
licensed professional does not | |||
rent or lease a specific booth | |||
(workspace). | |||
(7) Written Contract | The written agreement between | The written agreement clearly | This element carries medium weight. Written |
or Agreement | the principal and the licensed | explains the day-to-day | agreements do not necessarily depict the actual |
professional gives the principal | working relationship between | relationship. The actual practices of the parties | |
control over the manner and | and by each party to the | in a relationship are more important than | |
means by which the licensed | contract. The contract provides | the wording of an agreement in making a | |
professional performs services. | that the licensed professional | determination. | |
The written agreement provides | establishes his or her own | ||
that the licensed professional | hours of work, sets his or her | A contract carries little weight if the contract | |
has to sell the principal's retail | own prices, directly collects | leans toward independence, but the actions | |
beauty products to the general | payments from his or her | of the parties point toward employment. | |
public. The principal receives | customers, directly | ||
a percentage of fees collected | schedules his or her clients' | ||
and not a contracted flat rate | appointments, personally | ||
for booth (workspace) rental. | resolves any customer | ||
Although the written agreement | complaints related to his or her | ||
states that the licensed | services, determines his or her | ||
professional rents a particular | own manner of dress. The | ||
chair, the principal assigns the | contract states that the licensed | ||
licensed professional to work | professional is not required to | ||
at various chairs and controls | sell the principal's retail | ||
his or her working hours. | products. The agreement sets a | ||
flat rate of rent for the use of | |||
the principal's facilities by the | |||
licensed professional. |
Table of Determination Elements -Barbering and Cosmetology
ELEMENTS | EVIDENCE OF | WEIGHT | |
EMPLOYEE | INDEPENDENT | ||
CONTRACTOR | |||
(8) Termination | Both the principal and the | The rental aggrement may be | The question of the right to terminate the |
licensed professional have the | terminated by mutual agreement, | relationship carries great weight. | |
tight to terminate the | or by either party's violation of | ||
relationship at will, without | the argreement's terms (e.g., | The right to terminate the licensed professional | |
prior notice, and without any | failure to pay rent). The | at will, without cause, is strong evidence of | |
further contractual liability | licensed professional would be | employment. The right to terminate conveys an | |
(except for services already | liable to principal for unpaid | inherent power of the principal over the licensed | |
performed). The principal | rent, and principal would owe | professional and shows the licensed professonal's. | |
may terminate the contract on | the licensed professional for | likely submission to control by the principal | |
one day's notice if there is a | any prepaid rents | ||
violation of the written | |||
agreement, but ther is no | |||
such corresponding provision | |||
for the licensed professional. | |||
The pricipal could | |||
immediately terminate the | |||
relationship for noncompliance | |||
of the principal could | |||
immediately terminate the | |||
relationship for noncompliance | |||
of the principal's policies. | |||
The licensed professional | |||
could be terminated for | |||
refusing to acept an | |||
assignment. The principal can | |||
reprimand and terminate a | |||
licensed professional for | |||
misconduct or because of a | |||
customer complaint. | |||
(9) Engagement in a | The licensed professional | The licensed professional | This element carries great weight. If the licensed |
Distinct Business | does not operate his or her | operates an independent | professional does not have an established |
own business separate from | business separate from that of | separate business, distinct from that of the | |
that of the principal. The | the principal. The relationship | principal, and the services are performed in the | |
services performed are an | between the principal and the | furtherance of the principal's business, great | |
integral part of the principal's | licensed professional is that | weight would be given towards employment. If the | |
business. The licensed | of a landlord and tenant. The | licensed professional has a separate business, | |
professional performs all of | licensed professional has a | distinct from that of the principal, where he or she | |
his or her services at the | business license where | can make business decisions, which would enable | |
principal's place of business | required, is properly licensed | him or her to earn a profit or incur a financial | |
and under the principal's name. | by the Department of | loss, great weight would be given towards | |
The licensed professional does | Consumer Affairs for the type | independence. | |
not advertise his or her services. | of services provided, | ||
The principal's name is on the | and advertises at his or her | ||
business license. The business | own expense, including the | ||
cards of the licensed | purchase of his or her own | ||
professional have the | business cards. The licensed | ||
principal's business | professional has his or her | ||
identified on them. | separate clientele and the client | ||
The principal sets the fees for | lists are the property of the | ||
services, products, and | licensed professional and not | ||
merchandise purchased by | the principal. The licensed | ||
clients. The principal absorbs | professional is not required to | ||
the loss when the customer | participate in the principal's | ||
does not pay or issues a | advertised specials. The | ||
non-negotiable check. The | licensed professional pays for | ||
principal in effect guarantees | his or her own products and | ||
payment for services rendered | merchandise, and absorbs losses | ||
by the licensed professional | from a client's failure to pay | ||
and the licensed professional | for services, or non-negotiable | ||
does not incur the | checks. The licensed | ||
entrepreneurial risk of loss. | professional is personally | ||
The principal's name | responsible for his or her own | ||
is on the credit card machine. | performance and makes refunds | ||
(9) Engagement in a | The principal provides | to customers from his or her | |
Distinct Business | liability insurance and worker's | own funds. The licensed | |
(continued) | compensation coverage. The | professional carries the | |
principal assigns customers to | necessary liability insurance | ||
the licensed professional. | for the services performed. | ||
The principal maintains an | Through this the licensed | ||
appointment book. If the | professional bears the | ||
licensed professional cannot | entrepreneurial risk of loss. | ||
perform or complete a job for | The licensed professional | ||
a customer, he or she is | sets his or her own | ||
required to notify the | appointments. The licensed | ||
principal who arranges for a | professional sets his or her | ||
substitute. The licensed | own hours of work. The | ||
professional cannot work at | licensed professional | ||
another location and | determines whether or not a | ||
take his or her own clients. The | walk-in customer will be | ||
licensed professional does not | served and can refuse to serve | ||
have clientele independent of | any customer, or refer a client | ||
the principal's walk-in | to another licensed | ||
customers. The licensed | professional. The licensed | ||
professional is not | professional sets his or her | ||
engaged in an entrepreneurial | own prices and directly | ||
venture or put at a financial | collects payments from his | ||
risk. The professional licensed | or her customers. The | ||
by the Bureau of Barbering | licensed professional is free | ||
and Cosmetology | to provide services at other | ||
collects the payments | locations, without informing | ||
from customers and places | the principal. | ||
all funds in a communal | |||
cash register. | |||
(10) Level of Skill | In this particular industry, both employees and independent | This element is neutral. The level of skill, by | |
contractors are required to have a license from the Department | itself, is not controlling. However, a high level | ||
of Consumer Affairs to perform cosmetology services. | of technical skill will weigh towards independence | ||
when combined with other elements such as | |||
engagement in a distinct business, and lack of | |||
supervision. A low level of technical skill weighs in | |||
favor of employment, since, as skill level declines, | |||
the licensed professional has less capability to | |||
exercise the discretion necessary for independence. | |||
In these occupations an individual can work either as | |||
an independent contractor or as an employee with the | |||
same level of skill. | |||
(11) Duration of | The licensed professional | The licensed professional | This element carries low to medium weight. |
Services | performs services that are on | performs services that are | If the time in which the service is performed |
a regular, continuous, or | short in duration, intermittent | is short, the worker is less likely to subject | |
full-time basis. | and are not performed on a | him or herself to control regarding how | |
continuous or full-time basis. | the services should be performed. This is | ||
The licensed professional can | especially true when the worker is paid by the | ||
perform services for one | job, and not by the hour, commission, or piece | ||
principal for an extended | rate. Employment is usually of open-ended | ||
period of time, however, | duration. If the licensed professional performs | ||
the relationship cannot be | services on a continuing basis for an indefinite | ||
indefinite. | period of time, it would be evidence of | ||
employment, especially if the services are | |||
a regular part of the principal's business. | |||
Contracts entered into by a licensed professional | |||
that include a start date and an end date would | |||
be an indication of independence. | |||
(12) Custom in | The principal treats the | Professionals licensed by the | This element carries low weight. Each |
Industry and | professionals licensed by the | Bureau of Barbering and | determination must stand on its own facts |
Location | Bureau of Barbering and | Cosmetology typically | regarding the principal's right to direct |
Cosmetology as employees. | operate their own separately | and control the services. Industry custom | |
established businesses. | merely gives an inference or direction to the | ||
determination. |
ELEMENTS | EVIDENCE OF | WEIGHT | |
EMPLOYEE | INDEPENDENT | ||
CONTRACTOR | |||
Table of Determination Elements -Barbering and Cosmetology
(13) Instrumentalities, | The licensed professional | The licensed professional pays | This element carries medium to great weight. |
Tools, and Place | performs his or her services | rent to the principal for space | Its importance will vary depending on the |
of Work | at the principal's place of | and facilities. The licensed | value of the items. Typically in this industry, |
business. The principal pays | professional pays for any | the major equipment such as chairs, sinks, etc., | |
all of the expenses of operating | service provided by the | are part of the shop. Hand tools commonly used | |
and maintaining the shop, | principal, such as laundry | by the licensed professional, such as combs, | |
owns the equipment, and | for towels or drapes. The | scissors, and clippers do not infer either | |
furnishes the supplies. The | licensed professional is free | employment or independence. However, larger | |
principal provides the premises, | to use his or her own | more expensive equipment such as facial machines | |
workstations, chairs, | products and is not required to | would suggest a major investment by the licensed | |
stationary dryers, mirrors, and | use the principal's products. If | professional, which would be an indication of an | |
wash basins. The principal | the licensed professional uses | independent contractor relationship. The fact that | |
provides the shampoos, | any of the principal's products, | the principal rents space and equipment to the | |
conditioners, hair dyes, | he or she must pay for those | licensed professional is, by itself, an indication | |
permanent solutions, rollers, | products. The licensed | of independence. However, it must be examined in | |
and towels. The principal | professional provides and | connection with other ELEMENTS such as, | |
provides a receptionist without | maintains his or her own | supervision on the job, training, work schedules | |
charging the licensed | major equipment, such as facial | and engagement in a distinct business in order | |
professional. The licensed | equipment. | to establish the true nature of the relationship. | |
professional does not | |||
pay rent for space, equipment, | |||
or supplies provided by the | |||
principal. | |||
(14) Method of | The principal, without | Rental payments and payments | This element carries a low weight. The |
Payment | negotiation, sets the amount | for laundry, etc., are | method of payment is only an indication of the |
of compensation to be paid | negotiated. The licensed | type of relationship. It must be examined in | |
to the licensed professional. | professional issues a Form | connection with other elements, such as, | |
The licensed professional is | 1099 to the principal to reflect | supervision, work schedule, and the engagement in | |
paid regular amounts at | all rent payments of $600 or | a distinct business. Taken by itself, the | |
regular intervals. The licensed | more paid during the calendar | method of payment does not strongly weigh | |
professional is paid by time | year. There are no payments | in favor of employment or independence. | |
(the hour, week, month, etc.), | from the principal to | ||
or by commissions. The | the licensed professional, since | ||
principal reimburses expenses | the professional licensed by | ||
or furnishes benefits, or both, | the Bureau of Barbering and | ||
to the licensed professional. | Cosmetology is paid directly | ||
The principal collects all | from his or her own clientele. | ||
monies, tallies the proceeds, | However, the principal can pay | ||
and pays the licensed | a commission for the sale of his | ||
professional. | or her products to any licensed | ||
professional who chooses to | |||
make a sale. | |||
(15) Belief of Parties | All parties believe the | All parties agree that the | This element is given low weight. The |
relationship is one of | relationship is one of | belief of the parties is indicative of the | |
employment. | independence. | relationship intended, but it is not controlling. | |
(16) Part of Regular | The services of the licensed | The services of the licensed | This element is given medium weight. If |
Business of | professional are an essential | professional are incidental to | the services of the licensed professional are an |
Principal | part of the principal's business | and are not an essential part of | integral (regular, normal, central) part of the |
activities, which is the | the principal's business | principal's business, then the principal, by | |
providing of barbering and | activities. The principal is an | business necessity, needs to maintain control | |
cosmetology services. | investor in an establishment and | over the services of the licensed professional. If | |
only provides financial backing | the principal has professionals licensed by the | ||
for licensed professionals. The | Bureau of Barbering and Cosmetology | ||
principal does not perform any | performing services in his or her salon as | ||
services for the salon business. | employees as well as alleged independent | ||
contractors, the services of the alleged | |||
independent contractors must be clearly | |||
distinguished from the services of the employees | |||
using the other elements listed above. |
Note: Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Sections 621 and 13004, Unemployment Insurance Code.
HISTORY
1. New section filed 1-22-2001; operative 2-21-2001 (Register 2001, No. 4).
2. Change without regulatory effect amending subsections (a), (c)(5), (c)(9), (c)(12), (c)(14) and (c)(16) filed 4-18-2002 pursuant to section 100, title 1, California Code of Regulations (Register 2002, No. 16).
This database is current through 5/13/22 Register 2022, No. 19
22 CCR § 4304-12, 22 CA ADC § 4304-12
End of Document |