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§ 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 11/3/17 Register 2017, No. 44
22 CCR § 4304-12, 22 CA ADC § 4304-12
End of Document© 2017 Thomson Reuters. No claim to original U.S. Government Works.