Hazard communication and independent contractors in beauty salons

March 13, 1990
The Honorable Alan Wheat
United States House of Representatives
[Recipient address omitted]
Dear Congressman Wheat:
Thank you for your letter of January 9, to Ms. Ruth Knight, Director of Intra-Governmental Affairs for the Occupational Safety and Health Administration (OSHA). Your letter transmitted correspondence from your constituent, Ms. Paula J. Sego, who requested a clarification of OSHA's Hazard Communication Standard (HCS), 29 CFR 1910.1200, as it applies to independent contractors operating in beauty salons.
The applicability of the HCS (and indeed of all OSHA standards promulgated under the Occupational Safety and Health Act of 1970 ("the Act")) depends on whether any of the individuals in the workplace are employees or employers as defined under the Act and under the HCS. An examination of the actual economic relationship that exists between the individuals in a workplace is necessary to determine if an employee/employer relationship exists and, therefore, if the provisions of the Act and the HCS apply. Operators or other workers simply calling themselves "independent contractors" or using contractual agreements does not automatically transform these individuals into "independent contractors" nor relieve the salon operator from responsibility as an employer.
Determination by OSHA regarding the applicability of the Act and the HCS in uncommon employment situations such as the one described in your constituent's letter is always made on a case-by-case basis. First, a determination of whether any of the entities engaged in the salon's business are functioning as employers or employees under the OSH Act must be made. No single criterion exists that, in and of itself, determines if an employer/employee relationship exists. When evaluating divergent work situations in order to determine the applicability of OSHA coverage, OSHA utilizes the following criteria:

1. Whom do the workers consider their employer, or do they consider themselves self-employed?
2. Who pays the workers' wages? Who establishes the level of pay? How are wages established?
3. Who has the actual power or ability to control the workers? Who actually directs or supervises the worker's daily and overall activities, assigns work, decides whether work is satisfactory, and establishes work schedules including hours of work, vacation and sick leave?
4. Who has the responsibility, as opposed to the actual power, to control the workers?
5. Does the worker's ability to increase their income depend on simple efficiency rather than initiative, judgment or foresight? May the workers increase their income through the exercise of business judgment?
6. Who has control over the work environment such that hazards may be abated? Who owns or furnishes the equipment and physical worksite? And, especially pertinent to beauty salons and OSHA's HCS, who controls (and supplies) which chemicals (shampoos, dyes, etc.) are to be used?

OSHA compliance officers would utilize these criteria, developed by the Occupational Safety and Health Review Commission and the Courts under the OSH Act, on a case-by-case basis, to determine if a salon owner, operator or other entity is in fact an employer of some or all of the workers in the salon. Under various work situations, the salon operator could in fact be the employer of all the salon workers including beauty operators, shampooists, receptionists, janitors, etc. Alternatively, the salon owner could be the employer of only the operators and maintain an independent contractor relationship with other workers. It is also possible that the beauty operators could be working as independent contractors for the salon owner and, at the same time, the operators could be the employers of other workers like shampooists or receptionists.
If, utilizing the above criteria, OSHA determines that an employee/employer relationship exists, as set forth under the Act, then a determination on the applicability of the Hazard Communication Standard is performed. The HCS applies if an employer is engaged in a business where chemicals are either used, distributed or produced and if an employee may be exposed to hazardous chemicals under normal operating conditions or in foreseeable emergencies.
In some situations, a beauty salon might qualify as a multi-employer workplace under the HCS. For example, each operator could act as an employer and hire an employee to shampoo and perform other work. OSHA's compliance officer would have to determine whether each operator and shampooist had an employee/employer relationship under the OSH Act criteria listed earlier. Then it would be necessary to determine if the HCS applied (Does the operator use, distribute or produce chemicals in the business and may the shampooist be exposed to hazardous chemicals?). If more than one operator is an employer under the HCS, then the multi-employer worksite provision applies, and information regarding the hazardous chemicals, including MSDS, labels and appropriate precautionary measures must be included in each employer's hazard communication program.
OSHA realizes that the applicability of the provisions of the HCS is sometimes a difficult issue in the type of workplace situations described by Ms. Sego. Hopefully, however, the information in this letter will be beneficial to your constituent and help clarify the concerns she raised. Please feel free to contact us again if we can be of further assistance.
Sincerely,
Gerard F. Scannell
Assistant Secretary
cc: Washington D.C. Office
[Corrected 4/20/2005]

------------------------------------------------------------------------

[Requester letter reproduced on OSHA page; omitted here.]