BILL ANALYSIS                                                                                                                                                                                                    Ó





          SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
                             Senator Tony Mendoza, Chair
                                2015 - 2016  Regular 

          Bill No:               AB 2025      Hearing Date:    June 29,  
          2016
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          |Author:    |Gonzalez                                             |
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          |Version:   |June 9, 2016                                         |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Alma Perez-Schwab                                    |
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              Subject:  Barbering and cosmetology:  labor law education  
                                    requirements


          KEY ISSUES
          
          Should the Legislature require that the Board of Barbering and  
          Cosmetology (BBC) offer all written materials provided to  
          licensees and applicants in English, Spanish and Vietnamese? 

          Should the BBC be required to provide practitioner and  
          establishment applicants with information about basic labor laws  
          when they apply for a license?  

          Should the BBC include basic labor law information in health and  
          safety curriculum taught in BBC-approved schools?
          

          ANALYSIS
          
           Existing law:  

             1)   Provides for the licensure regulation of the practice of  
               barbering, cosmetology and electrolysis under the Barbering  
               and Cosmetology Act by the Board of Barbering and  
               Cosmetology (BBC).  (Business and Professions Code (BPC)  








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               §7300 et. seq.)

             2)   Requires the BBC to establish a Health and Safety  
               Advisory Committee to provide advice and recommendations on  
               health and safety issues.  (BPC §7314.3) 

             3)   Details requirements for applicants for licensure as a  
               cosmetologist, barber, esthetician, manicurist and  
               electrologist (collectively beautification service  
               providers) to complete in order to take BBC required  
               examinations, including proof of the applicant's  
               qualifications verified by the oath of the applicant. (BPC  
               §7337)

             4)   Requires the BBC to maintain a program of random and  
               targeted inspections of establishments to ensure compliance  
               with applicable laws relating to the public health and  
               safety and the conduct and operation of establishments.   
               (BPC §7353)

             5)   Requires licensees to report to BBC upon renewal,  
               including:  (BPC §7401)
                  a.        License status, as defined. 
                  b.        Identification as an employee, independent  
                    contractor, booth renter or salon owner.
                  c.        For establishments, whether a booth renter is  
                    operating in the establishment or whether an  
                    independent contractor is operating in the  
                    establishment.

             1)   Establishes the Dymally-Alatorre Bilingual Services Act  
               which, among other things, mandates that every State agency  
               that serves a substantial number of non-English-speaking  
               people and provides materials in English explaining  
               services, shall also provide the same type of materials in  
               any non-English language spoken by a substantial number of  
               the public served by the agency.  (Government Code Section  
               7290 et seq.)

             2)   Establishes the Division of Labor Standards Enforcement  
               (DLSE) and grants the Chief of DLSE (Labor Commissioner)  
               and his or her employees' access to all places of labor for  
               purposes of labor law enforcement.  

             3)   States the policy of this state to vigorously enforce  







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               minimum labor standards in order to ensure employees are  
               not required or permitted to work under substandard  
               unlawful conditions or for employers that have not secured  
               the payment of compensation, and to protect lawful  
               employers from those who attempt to gain a competitive  
               advantage at the expense of their workers by failing to  
               comply with minimum labor standards. 

             4)   Requires the Labor Commissioner to adopt an enforcement  
               plan for the field enforcement unit which shall identify  
               priorities for investigations that ensure the available  
               resources will be concentrated in industries, occupations,  
               and areas in which employees are relatively low paid and  
               unskilled, and those in which there has been a history of  
               violations and those with high rates of noncompliance with  
               the law.  (Labor Code §90.5)

             5)   Requires employers, at the time of hiring, to provide  
               each employee a written notice, in the language normally  
               used to communicate employment-related information to the  
               employee, containing information about the rate or rates of  
               pay.  (Labor Code §2810.5)
           

          This Bill  would require the Board of Barbering and Cosmetology  
          (BBC) to provide practitioner and establishment applicants with  
          information about basic labor laws, as specified, in addition to  
          requiring that the information be provided in various specified  
          languages.  

          Specifically, this bill: 

             1)   Requires BBC to offer and make available all written  
               materials provided to licensees and applicants in English,  
               Spanish, and Vietnamese.

             2)   Requires BBC, beginning January 1, 2018, to collect  
               demographic information for establishment license  
               applicants, through optional questions on the applications  
               for a license issued pursuant to Section 7396.1, including  
               but not limited to the applicant's spoken and written  
               language preference.

             3)   Expands the role of the BBC Health and Safety Advisory  
               Committee to require recommendations be provided on issues  







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               impacting board licensees, including how to ensure  
               licensees are aware of basic labor laws.  States that basic  
               labor laws (BLLs) includes, but is not limited to all of  
               the following:

                  a.        Key differences between the legal rights,  
                    benefits, and obligations of an employee and an  
                    independent contractor;
                  b.        Wage and hour rights for hourly employees;
                  c.        Antidiscrimination laws relating to the use of  
                    a particular language in the workplace;
                  d.        Anti-retaliation laws relating to a worker's  
                    right to file complaints with the Department of  
                    Industrial Relations and; 
                  e.        How to obtain more information about state and  
                    federal labor law.

             4)   Requires applications for licensure as a beautification  
               service provider to include a signed acknowledgment that  
               the applicant understands his or her rights as a licensee  
               as outlined in informational materials on BLLs that is  
               provided by the BBC with the application.

             5)   Requires applications for licensure as an establishment  
               to include a signed acknowledgment that the applicant  
               understands that establishments are responsible for  
               compliance with any applicable labor laws of the state and  
               that the applicant understands the informational materials  
               on BLLs that is provided by BBC with the application.

             6)   Requires the BCC to add the specified basic labor laws  
               to the health and safety course developed or adopted to be  
               taught in BBC-approved schools.  



          COMMENTS
          
          1.  Concerns about Nail Salons and Experiences on Nail Salon  
            Employees:

            According to the Senate Business, Professions & Economic  
            Development Committee:

            "Nail salons have been the focus of studies and media reports  







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            in recent years stemming from health, safety and labor  
            concerns in these settings.  In May 2015, the New York Times  
            (NYT) published two articles stemming from interviews with  
            more than 150 nail salon workers and owners that found that a  
            cast majority of workers are paid below minimum wage and are  
            sometimes not even paid.  The articles found that workers  
            "endure all manner of humiliation, including having their tips  
            docked as punishment for minor transgressions, constant video  
            monitoring by owners, even physical abuse."  The NYT also  
            found that employers are rarely punished for labor and other  
            violations and that in 2014, when the New York State Labor  
            Department conducted its first nail salon sweep, investigators  
            inspected 29 salons and found 116 wage violations. While only  
            about a quarter of the more than 100 workers said they were  
            paid an amount equivalent to that state's minimum hourly wage,  
            all but three said they had wages withheld in ways considered  
            illegal, such as never getting overtime and many were unaware  
            that working unpaid was against the law and their alarmingly  
            low wages are also illegal.  

            A February 2016 follow up report in the NYT articles found  
            that 40 percent of the salons inspected, as part of the Labor  
            Department's increased efforts to inspect following the  
            original May articles, underpaid employees, including one  
            worker at a Manhattan salon who was paid $30 a day for 10-hour  
            shifts, a manicurist in Queens who was paid only $200 for a  
            50-hour workweek, manicurists at seven salons who were forced  
            to work for no pay or had to pay salon owners a fee,  
            ostensibly to learn the trade and several owners admitted to  
            submitting fake payroll records in an effort to fool  
            investigators.  The article highlighted that employers are  
            often unfamiliar with the intricacies of state labor laws." 

          2.  Need for this bill?

            On August 26, 2015, the California Assembly Select Committee  
            on Women in the Workplace, the Assembly Select Committee on  
            Girls and Women of Color, and the Assembly Committees on  
            Health, Business and Professions, and Labor held a joint  
            informational hearing titled "Labor Practices, Health, and  
            Safety in California Nail Salons."  The purpose of the hearing  
            was to obtain information, address concerns, and discuss  
            policy recommendations regarding nail salon practices from  
            state agencies, advocates, and industry.








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            According to the hearing briefing paper, California is home to  
            more than 8,500 nail salons and over 95,000 nail technicians,  
            accounting for a quarter of the country's nail salon workers.   
            In 2014, roughly 75% of these California nail salons were  
            owned or operated by Vietnamese Americans. The briefing paper  
            also cites a 2006 study by Cornell University, which found  
            that within California's nail technician work force,  
            Vietnamese workers increased from 10 percent in 1987 to 59  
            percent in 2002, and percentages continue to grow.  

            The author notes that the most widely agreed-upon problem  
            discussed at the hearing was lack of information about worker  
            rights. According to the author, this lack of information,  
            combined with cultural and language barriers, has led to some  
            nail salon owners using illegal practices to manage workers.  
            These practices include employee/contractor misclassification,  
            daily pay totaling less than minimum wage, unpaid overtime,  
            withholding tips or deducting pay as retaliation, denying meal  
            breaks, and language discrimination. The author states that it  
            is clear to many stakeholders that the use of such illegal  
            labor practices is not always malicious, so one commonsense  
            step is to ensure that owners are informed of existing laws.  
            This bill utilizes the current establishment application  
            process to increase awareness of basic labor laws relevant by  
            requiring the Board of Barbering and Cosmetology to provide  
            practitioner and establishment applicants with this  
            information at the time of application.   

          3.  Proponent Arguments  :
            
            According to the author, California has many strong labor  
            standards, but part of enforcing those laws is making sure  
            workers know their rights, and that business owners are aware  
            of obligations to the workers in those businesses.  The author  
            notes that "AB 2025 takes the opportunity to educate workers  
            and salon owners using existing license application processes  
            and training requirements.  The Legislature also knows that  
            language barriers are a problem for establishments regulated  
            by the Board of Barbering and Cosmetology, especially nail  
            salons, which is why AB 2025 includes provisions to improve  
            language access for both workers and businesses."  Proponents  
            believe this measure strikes the right balance in its focus on  
            education and removal of language barriers, while requiring  
            owners to have a basic understanding of their obligations  
            under California labor law. 







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          4.  Opponent Arguments  :

            None received.

          5.  Double Referral  :

            This bill has been double referred, and before coming to this  
            Committee for a hearing, it was heard and passed by the Senate  
            Business, Professions & Economic Development Committee.

          6.  Related Legislation  :

            AB 2125 (Chiu) of 2016, requires the California Department of  
            Public Health (DPH) to develop and publish guidelines for  
            local governments to implement local healthy nail salon  
            recognition programs with specified criteria, including the  
            use of less toxic nail polishes and polish removers and  
            improved ventilation.  Requires DPH to develop awareness  
            campaigns and post specified information on its Internet Web  
            site.  AB 2125 is pending before the Senate Business,  
            Professions & Economic Development Committee. 

            AB 2437(Ting) of 2016, requires on and after July 1, 2017, an  
            establishment licensed by BBC to post a model notice  
            pertaining to workplace rights and wage and hour laws,  
            developed by the Labor Commissioner and requires the BBC to  
            inspect for compliance of the posting requirement. AB 2437 is  
            pending before the Senate Appropriations Committee. 

            SB 1125(Nguyen) of 2016, requires BBC, for an establishment  
            license, if the establishment will offer nail care services,  
            to include a signed acknowledgement that an applicant  
            understands their responsibility to comply with any applicable  
            state labor laws and comply with the informational materials  
            BBC selects or develops related to basic labor laws.  SB 1125  
            is pending before the Assembly Business and Professions  
            Committee. 
             

          SUPPORT
          
          California Healthy Nail Salon Collaborative (Sponsor)
          Asian Health Services
          Asian & Pacific Islander American Health Forum 







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          Black Women for Wellness 
          California Employment Lawyers Association 
          California Immigrant Policy Center 
          California Labor Federation
          California Pan-Ethnic Health Network
          Communications Workers of America, District 9 
          Community Action Marin 
          Immigrant Resettlement & Cultural Center, Inc. 
          National Employment Law Project 
          Orange County Asian and Pacific Islander Community Alliance 
          Worksafe 
          1 Individual 
          
          OPPOSITION
          
          None received

                                      -- END --