Jeanne Kuan
This story was originally published by CalMatters.
Like
thousands of other Vietnamese-American women in California, Emily Micelli
started painting nails to support herself. She turned that weekend job into a
two-decade-long career as a manicurist, and now offers her own nail art designs
at an upscale Newport Beach salon.
This
year, she found her livelihood upended by a few words in the state labor code.
Like
other workers in the beauty industry, state-licensed nail technicians were
granted an exemption from Assembly Bill 5, the sweeping 2019 law targeting
the gig economy that required many employers to classify workers as employees
rather than independent contractors.
For
nail salons, the exemption was temporary. When it ended on Jan. 1 this year,
thousands of manicurists across the state found themselves in legal limbo over
their employment status. Many, like Micelli, value their working conditions as
independent contractors where they can choose their clients and set their own
schedules and are unwilling to be reclassified as hourly employees of the
salons where they work.
Lawmakers,
backed by unions and workers’ advocates, are now rushing to extend the
exemption again — but still only temporarily.
Labor
groups say the law targets an industry with an exploited workforce, and they
still want to address that. One estimate by UCLA and the California Healthy
Nail Salons Collaborative advocacy group says that more than 80% of nail salon
workers are immigrants, the overwhelming majority of whom are
Vietnamese women. The report’s authors said those workers are vulnerable to
worker misclassification, below minimum wages and other labor violations.
Salon
owners and some manicurists say that scrutiny is discriminatory. A group of
Vietnamese-owned salons and nail technicians, including the Blu Nail Bar where
Micelli works, sued the state this year. They claim it is racial discrimination
to exempt every beauty profession from stricter employee classification laws
except the one made up largely of Vietnamese licensees.
“I
feel like they singled us out,” Micelli said. “For hair, they can choose (to be
an independent contractor). For nails, they don’t allow us to.”
The
debate has exposed two vastly different sides of a ubiquitous industry. Many of
the women filing, shaping and painting Californians’ nails in over 6,000
establishments statewide say they deserve to be viewed as independent,
professional artists the same as their peers across the beauty industry — even
as they acknowledge grueling work conditions in some salons.
Micelli
said other salons that have employed her in the past imposed assembly line-like
conditions and rushed her to perform more services.
As
an independent contractor, she buys her own supplies to stay nimble with
trending styles, manages her own appointment hours and sets her own prices. She
splits the proceeds 50-50 with the salon, giving the salon a higher cut than
normal for its upscale environment.
She
most enjoys having a flexible schedule so she can chat with her clients, one at
a time.
“It
was 30 minutes for a manicure and then you have to move on to the next one,”
she said of other salons. “I hope the government doesn’t force us to go into
something where I have to comply with a salon. I consider myself a nail
artist.”
'More
complaints specifically' in nail salons
Manicures,
once a luxury service, have exploded in availability over the past half-century
to become synonymous with everyday indulgence.
That’s
due in part to new tools and acrylic nails, and to the proliferation of
immigrant-owned nail salons. Beginning with a group of refugee women in
Sacramento who learned how to do nails from Hollywood actress
Tippi Hedren’s personal manicurist in the 1970s, nail tech work
became a go-to rung on the economic ladder for Vietnamese American workers and
entrepreneurs.
The
number of licensed manicurists in California has more than tripled since 1987,
to more than 125,000 in 2023. Nearly half of those who take the licensure exam
each year do so in Vietnamese, said Jaime Schrabeck, a Carmel manicurist and
industry advocate who analyzed data from the state Board of Barbering and
Cosmetology.
In
2015, the New York Times drew
national attention to workplace abuses. Its investigation, which focused
primarily on Korean-owned nail salons in New York City, found workers were
underpaid, trafficked and toiled with dangerous chemicals.
Lawmakers
in California took notice, holding a hearing that year on the industry.
State
labor regulators had also tangled with nail salons. In one 2013 suit, the state
accused the Southern California chain Happy Nails & Spa of wrongly
classifying their workers as independent contractors instead of employees based
on how much control the businesses had over manicurists’ hours and work. The
state lost. The chain is now among the businesses suing over AB 5.
Employees
are more expensive because they are subject to protections like minimum wage,
overtime, meal breaks, workers’ compensation and sick days.
“We
found out there were more complaints specifically about misclassification and
more findings about misclassification in manicurists than overall cosmetology,”
said former Assemblymember Lorena Gonzalez, who convened the 2015 hearing.
When
Gonzalez introduced AB 5 in 2019 to apply even stricter worker classification
rules, many beauty professionals who rent booths in salons lobbied to keep
working independently.
They
were exempted from the law and could remain independent contractors, provided
they could prove that they took their own payments, booked their own customers
and maintained their own businesses separately from the salons where they
worked.
The
exemption was temporary so lawmakers could evaluate efforts to educate the
largely immigrant business owners on how to correctly classify workers.
In
2021, lawmakers extended the temporary nail salon exemption to 2025. But after
Gonzalez left the Legislature to lead the California Labor Federation, the
issue fell by the wayside. A subsequent bill to grant the exemption permanently
died without a hearing, catching manicurists by surprise.
Nail workers
scramble to comply
Janice
Luper was renting space in a Tehachapi salon where she had her own key and city
business license when she found out the law was about to change.
Gonzalez
said such arrangements are clearly independent, and would not be considered
employment under AB 5. But Luper, a self-described rule follower, said the law
makes it hard to prove she’s not an employee, requiring that a contractor’s
work be “outside the usual course of the hiring entity’s business.” Because the
salon owner also did manicures, Luper worried her own services wouldn’t be
considered separate enough.
So
she moved out. By the end of the year, she and a hair stylist opened their own
salon — a $30,000 investment Luper is keenly aware many other nail technicians
can’t afford.
Other
manicurists and salon owners got the attention of Republican
Assemblymember Tri Ta, who is
Vietnamese and represents Orange County’s Little Saigon. He introduced a bill this
year to permanently exempt nail salons from AB 5. The Assembly Labor Committee
never granted it a hearing.
Instead,
the committee, chaired by Hayward Democrat Liz Ortega, in
June introduced a different bill to
extend the exemption until 2029. The Employment Development Department and
Labor Commissioner’s Office would be required to study the rate of labor
violations in the nail industry to develop rules that “ensure manicurists enjoy
equal rights under California law.”
“These
are hard-working immigrant women who put in long hours in often toxic
environments where their hours and wages are controlled by shop owners, just
like any other employees,” Ortega said in a statement.
But
the nail salon operators are often immigrants themselves, and in an interview,
Ta chafed at the idea that those owners were uniquely violating labor law,
saying there are bad actors in any industry.
“You
cannot, because of one bad actor, treat everyone unfairly,” he said.
'This is how
everybody does it'
The
UCLA report found a third of nail technicians are independent contractors,
three times higher than the rate for all workers. But what some say is a
common, legitimate business model, others call widespread misclassification.
One
Southern California manicurist, who spoke to CalMatters on the condition of
anonymity to avoid jeopardizing her job, said she learned of the practice 10
years ago when she started working at a salon in the Inland Empire.
The
Chinese-American manicurist said she felt the Vietnamese owners passed her over
for the more expensive services, limiting her to basic manicures. She was paid
a 40% commission on each service and issued a 1099 form for contractors, even
though the owner set her hours and handled payments.
When
she asked to be classified as a W-2 employee, her boss refused.
“She
said, ‘This is how everybody does it,’” she said. “‘We’re just doing what
everyone else is doing.’”
She
returned to manicuring in December 2023, and bounced around for a year in
several salons with similar arrangements. She now works at a salon in Monrovia,
finally as a W-2 employee. But she said she’s still paid a 60% commission.
“It’s
not hourly, which I don’t feel is fair because I’m there over 10 hours” per
shift, she said. “Sometimes when customers come late, we have to stay late.”
On
an average day, she said she makes about $100 before tips — a rate far below
California’s $16.50 minimum hourly wage.
She
recently drove down a boulevard in Rowland Heights, stopping in every nail
salon she saw to look for a new job. The responses she heard in a half-dozen
businesses were the same: No W-2 jobs, no hourly pay.
She’s
never reported it to state labor officials.
“I
need a job, and this is how they’re doing it everywhere,” she said.
The costs of
employment
Six
months after opening her own salon, Luper now finds herself on the other side
of the business equation.
The
overhead costs have been much higher than renting a space, and as the only
manicurist in the building, she’s too busy with her own clients to handle
walk-ins. She wants to bring in another nail technician — ideally a booth
renter – to take customers off her hands and offset costs.
But
she’s held off with the legal situation up in the air. She never envisioned
being an employer, and said she can’t afford to take on payroll taxes, workers’
compensation insurance and paying an hourly wage regardless of whether there
are customers. Besides, she said, she doesn’t think she could pay enough to
attract an employee.
“No
manicurist is going to work for the minimum wage,” she said. “That’s not why we
went to school.”
She
wishes the state worked harder to investigate bad actors and enforce existing
classification laws rather than complicating a business model that worked for
her. In the past year, the state Labor Commissioner’s Office has cited one nail
salon for misclassifying workers, spokesperson MariCarmen Estudillo said.
The
Monrovia manicurist said she’d love to make the hourly minimum wage. But she,
too, is wary about AB 5. Business isn’t busy like it was at her first salon,
where customers would crowd in and she would work the whole day without a
break. If nail salons had to pay all the costs of formal employment, she
doesn’t think they’d survive.
“I
want to get paid for the time there,” she said. “At the same time, I don’t know
how long I can have this job at this place if this continues.”
And
without the job, she can’t build up clientele to work independently, as she
dreams. She wants to offer her own nail designs, specializing in the builder
gel technique that’s become a popular alternative to acrylics. And she’s
studying for an esthetician’s license so she can also do facials.
Then
she wants to rent her own studio in a quiet salon, with just one chair and one
client at a time.
Courtesy of KPBS65
