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An Employee by Any Other Name: Nail Technicians Misclassified a Independent Contractors

Recently, the Kansas Court of Appeals affirmed the district court and the Kansas Department of Labor’s (KDOL) finding that nail technicians at a salon were employees rather than independent contractors for unemployment-tax contribution purposes. This case has important tips for handling classification issues in any industry.

Review of the Record
In 2014, Leander and Hongmin (Amy) Fisher began doing business as Amy’s Spa Services, LLC (the Spa). The Spa classified all of its nail technicians as independent contractors. The KDOL audited the business to determine whether the Spa properly classified the technicians for unemployment-tax withholdings. For unemployment-tax contributions in Kansas, an individual is an employee if the employer has the right to control the manner and means of the work performed; whether the employer exercises that right is inconsequential.
The auditor reviewed the Spa’s independent contractor agreement, interviewed three nail technicians and Leander Fisher, and reviewed some of the Spa’s financial documents. The auditor’s review of the independent contractor agreement stated that the parties intended to form an independent contractor relationship. Under the agreement, the Spa purported to require the technicians to clean their workstations, supply the tools necessary to complete their jobs, and gave the technicians discretion to set their own prices, as long as they did not undermine the Spa’s prices. The agreement also provided that the Spa would receive all payments that were later distributed to the technicians, and that a noncompete agreement prevented the technicians from performing similar services within six miles of the Spa. Additionally, the technicians could set their own work schedules but could not assign the agreement without the Spa’s consent.
The auditor’s interviews with the technicians, however, contradicted the agreement. The technicians explained that the Spa gave instructions on how to clean their workstations, required them to work set hours on the days they worked, required notice if a technician wanted to quit, and only allowed the technicians to use nail polishes approved by the Spa.
KDOL’s auditor concluded that the technicians were employees, not independent contractors. The Spa then challenged this determination, seeking administrative review. KDOL’s Chief of Contributions reviewed the determination by analyzing whether the Spa had the right to control the technicians and whether it exercised that right. Because the technicians were not running their own businesses, there were pricing restrictions in place, and the company used a single-payment system, the KDOL concluded an employer/employee relationship existed. Still unsatisfied, the Spa sought an administrative hearing.
The administrative hearing officer heard testimony from the auditor, the Chief of Contributions, and Leander Fisher. Fisher’s testimony described the independent contractor agreement, the ability of the technicians to hold other jobs, and the lack of training provided to the technicians. Based on all the evidence, however, the officer concluded the Spa had the right to control both the end result and the manner of work for the technicians. Thus, the proper classification of the technicians was that of employees.
In making that determination, the hearing officer analyzed eight statutory factors for determining whether the Spa had the right to control the technicians. After reviewing the factors, the officer concluded that five of the eight factors indicated the technicians were the Spa’s employees. Most importantly, the officer noted how integral the technicians were to the Spa’s overall business.
District Court and Court of Appeals: Affirmed
The Spa unsuccessfully appealed this determination to the district court, which found the KDOL’s determination was supported by sufficient evidence and that it was neither arbitrary nor capricious. Finally, the Spa appealed the determination to the Kansas Court of Appeals on the basis that KDOL misinterpreted or misapplied the law, that there was not substantial evidence to support its determination, and that its decision was unreasonable, arbitrary, or capricious. As the party challenging the decision, the Spa had the burden of proving the KDOL erred in classifying the technicians as employees.
Although the court acknowledged that the auditor’s investigation was inadequate and contradictory, it concluded that substantial evidence supported KDOL’s analysis of the eight factors and its determination. It found that the no-assignment clause, the advertising clause, the technicians’ fixed schedule, the noncompete clause, the centralized payment system, and the integral nature of the technicians to the Spa’s business allowed a reasonable person to conclude that the Spa had the right to control the technicians and provided a sufficient basis for the KDOL to conclude that the technicians were employees. Amy’s Spa Servs. LLC v. Kan. Dep’t. of Labor, 2018 Kan. App. Unpub. LEXIS 46 (Kan. App. Jan. 26, 2018).

This case is a good reminder for employers that merely calling a worker an independent contractor does not automatically establish an independent-contractor relationship. Furthermore, employers utilizing independent contractors must be aware that retaining the right to control the manner and means of performance jeopardizes the classification. The KDOL takes misclassification of workers very seriously, and the consequences for improperly classifying workers are severe. The KDOL makes determinations on a case-by-case basis after a detailed review of the facts. If you have any questions about the proper classification of workers, you should contact an experienced employment law attorney.


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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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