May 28, 2015 Practice Points

Nails Crackdown: Pushing Towards Fair Labor Standards for Salon Employees

By Janice Arellano

Suzi Weiss-Fischmann, cofounder and artistic director of OPI, which is a popular brand of nailpolish used in nail salons, once noted, "Now the economic barometer is measured by nail polish: as times get difficult, you buy a nail polish." Nail salon workers endure difficult working conditions and yet the product of their labor often results in beautiful creations. Such a ubiquitous trade often goes unregulated and the workers are often exposed to harsh chemicals, lack reasonable break time, if any, and as a result suffer long-term health effects. To the average salon goer, these problems have gone unnoticed until recently. On May 14, 2015, the plaintiffs Blanca Fernandez and Gloria Marca filed a putative class action lawsuit under the Fair Standards Labor Act against Nailsway Inc., Naulio Nails, Inc., Nailsmetic Corporation, nailscure Inc., Surya Gurung and Tsering Angmo. It has been alleged that the salons failed to pay minimum wage or overtime, among other unfair practices.

In a recent publication in the New York Times, it was reported that hundreds of nail salon workers are obtaining employment with poor work conditions, long hours, and many were paid less than the New York State's minimum hourly wage. Salon workers "describe a culture of subservience that extends far beyond the pampering of customers." American women average $1,345 per year in manicures and pedicures or $19.50 for a manicure and pedicure in one session. However, the federal class action complaint noted that employees are paid $60 or less for ten (10) hour shifts and often denied breaks.

The NY Times noted that nail salon workers are generally considered "tipped workers" under state and federal labor laws. Some manicurists are paid as little as $30 per day in salons across the city. "Employers in New York are permitted to pay such workers slightly less than the state's $8.75 minimum hourly wage, based on a complex calculation of how much a worker is making in tips." Under 29 U.S.C. section 203(m), employers can pay tipped employees less than the minimum wage and use a tip credit to meet their minimum wage obligations. Section 203(m) provides, "the amount paid of [a tipped] employee…shall be an amount equal to" (1) a cash wage of $2.13 per hour and (2) "an additional amount on account of the tips received by such employee" equal to the difference between the $2.13 cash wage and the $7.25 minimum wage. One exception to the rule for received a tip credit under 203(m) provides that "this subsection shall not be construed to prohibit the pooling of tips among employees." If anyone walks into a nail salon, and requires more than one service, it has become commonplace to see that employees often share tips with other customarily tipped employees, for example, the person doing the pedicure may end up sharing the tip with the person who completed the manicure for the same customer.

Salon workers are not just receiving unfair wages for demanding work but are also facing ethnic and gender discrimination that is seemingly pervasive in salon culture. For example, the Times reported that Korean manicurists are often given their top choices for jobs whereas non-Korean manicurists are given jobs in less desirable boroughs and side-shops. On May 15, 2015, Mayor Bill deBlasio of New York announced a crackdown on nail salons accused of exploiting predominantly immigrant workers of Hispanic and/or Asian descent by failing to pay minimum wage and exposing them to harsh chemicals. It is clear that many of the workers are likely undocumented immigrants who have been clinching to keep their jobs, despite the sacrifices and difficult working conditions. Many of the salon owners, often immigrants themselves, are trying to keep their businesses from tanking in such a fast-paced and unpredictable small-business environment such as New York City.

Keywords: minority trial lawyer, litigation, nail salon, manicure, pedicure, minimum wage, tip employee, labor laws, section 203(m), unfair wages, exploitation, immigrant

Janice Arellano is a law clerk for the Superior Court of New Jersey in Somerset, New Jersey.

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