Brito-Pacheco v. Tina's Hair Salon
| Decision Date | 25 June 2013 |
| Docket Number | No. WD 75062.,WD 75062. |
| Citation | 400 S.W.3d 817 |
| Parties | Mauro BRITO–PACHECO, Deceased; Michelle Pacheco, et al., Appellant, v. Tina's Hair Salon, Respondent; Treasurer of the State of Missouri–Custodian of the Second Injury Fund, Respondent. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Andrew J. Dickson, for Treasurer, State of Missouri, Kansas City, MO, for appellant.
Jerrold Kenter and Paul G. Danaher, Overland Park, for Michelle Pacheco, and Gregory J. Abella, Kansas City, MO, for Respondent Tina's Hair Salon, for respondent.
Before Division Three: ALOK AHUJA, P.J., and VICTOR C. HOWARD and CYNTHIA L. MARTIN, JJ.
The Labor and Industrial Relations Commission denied workers' compensation benefits to the dependents of Mauro Brito–Pacheco,who was murdered by a robber on August 10, 2009, while working at Tina's Hair Salon in Kansas City. The Commission found that the Salon was not Brito–Pacheco's statutory employer under § 287.040.1 Brito–Pacheco's dependents appeal. We affirm.
As of 2009, Mauro Brito–Pacheco had worked as a barber at Tina's Hair Salon for seven years. The Salon's owner, Augustina Diaz, and four other stylists also cut hair at the Salon at the time of Brito–Pacheco's death.2 Brito–Pacheco was the only stylist in the shop that cut hair exclusively for men.
Diaz testified in detail concerning the terms of her arrangement with the stylists who worked at the Salon, including Brito–Pacheco.
Diaz provided the stylists with shampoo, hair spray, and hair-coloring products. Each stylist provided his or her own equipment, including combs and brushes, clippers, hair dryers, and aprons. Diaz did not provide the stylists with any training, or uniforms.
Each stylist working at the Salon verbally agreed to pay Diaz fifty percent of the money they received from cutting and styling hair at the Salon. To allow Diaz to keep track of the money the stylists received, they would write down the name of the customers for whom they performed services, and the amount charged, in a shared appointment book. Diaz would collect her share of the stylists' revenues on a daily basis. Diaz emphasized in her testimony that she did not pay the individual stylists; instead, the customers paid them, and they paid Diaz her fifty percent share. Diaz did acknowledge, however, that on the infrequent occasions when customers paid by check, the checks would be made payable to her, and she would pay the stylist their share of the fee.
The Salon leased space in a two-story building which also housed an income-tax service operated by the building's owner. The stylists were each given their own key to the Salon. Diaz established business hours of 10:00 a.m. through 8:00 p.m.; she testified that the stylists were not authorized to take appointments outside of those hours. Diaz later testified, however, that Brito–Pacheco frequently worked at the Salon beyond its closing time, and was also free to come in before the designated opening time when necessary. Diaz agreed that Brito–Pacheco “could come in early or stay later and work pretty much whatever [sic] he wanted.”
Diaz did not pay any taxes on behalf of the stylists and did not provide the stylists with any insurance or fringe benefits. Their sole compensation was their fifty percent share of the amounts received from clients.
Each stylist maintained his or her own client lists, set the prices they would charge, and collected money from their own clients. Although each stylist “had their own prices,” Diaz testified that the stylists as a group had agreed to a minimum price for haircuts (although not for other services). Diaz also testified that new stylists would ask her for her pricing, as a benchmark for establishing their own. It was common for stylists to give free haircuts to friends and family members; when that occurred, Diaz received no fee, because the haircuts generated no revenue to be divided. Diaz testified that, if Brito–Pacheco failed to show up for work and had clients waiting, no other stylist would cut those clients' hair: “[h]e care for his own customers and the customers they don't let nobody cut.” If Brito–Pacheco was not there, his clients would wait.
Diaz testified that, if the Salon had walk-in customers, the walk-ins would be assigned to a stylist “by turn.”
The stylists made their own appointments and set their own working hours, and could work as much or as little as they chose. They could also take vacation whenever they chose. Diaz testified that the stylists had no obligation to inform her of their appointments, or if they would not be coming in because they were sick. The stylists were responsible for obtaining a substitute if they wanted one, on days they could not come in to work; Diaz testified that frequently a stylist who could not come to work would call another stylist to cover for them. Because Diaz did not know who the stylists' customers were, or when those customers had appointments, it was up to the stylists to inform their clients if the stylist was unable to keep an appointment.
Diaz did not do any advertising for the Salon. A sign on the building identified the business as “Tina's Hair Salon.” The Salon had a single phone line, which any available stylist would answer. Diaz provided the stylists with business cards listing the Salon's name, which had space for the stylists to write their own name and telephone number; the stylists could use the cards as they saw fit, and were free to have their own individualized business cards printed.
Diaz testified that, when Brito–Pacheco first began working at the Salon, he worked only on weekends, but that he later quit another job he was working, and began working longer hours at the Salon.
Brito–Pacheco's wife testified that, on the day of his murder (August 10, 2009), she was working when she received a call from him, indicating that he had been called in to work to substitute for another stylist. Mrs. Brito–Pacheco testified that, because they did not have any other baby-sitter available, she left work early to watch their children. She also testified that it was mandatory for Brito–Pacheco to go to work when he was called on August 10, 2009, and that he would have been reprimanded or disciplined by Diaz if he had failed to appear. Diaz testified that she did not call Brito–Pacheco to come in to the Salon on the day he was murdered, that he would not have been reprimanded or disciplined if he had not appeared, and that she had never reprimanded or disciplined any stylist for non-attendance at the Salon. She acknowledged that it was possible that another stylist had called Brito–Pacheco on that day to cover for him.
Diaz testified that she was not working at the Salon when Brito–Pacheco was murdered. Brito–Pacheco, another stylist, and a customer were present at the time. Diaz received a call at 6:00 p.m. from the other stylist, informing her of the robbery and Brito–Pacheco's shooting. She reached the Salon shortly thereafter.
After his death, Brito–Pacheco's wife filed a claim for workers' compensation benefits. Following a hearing, an administrative law judge within the Division of Workers' Compensation issued a decision finding that Brito–Pacheco was not an employee of Tina's Hair Salon at the time of his death, and that no workers' compensationbenefits were therefore owing. The ALJ's decision found:
Tina's Hair Salon operates as a sole proprietorship by Tina Diaz. Diaz testified that she supplied a work station and shampoo-chemical supplies to the hairdressers. Diaz also provided salon business address cards to which operators could add their name. Diaz did not schedule appointments, limit or mandate work hours, provide employee benefits, pay taxes or mandate fees. Basically the hairdressers would use the space provided and divide the proceeds of compensation paid by customers. Diaz did not have workers' compensation, fire or liability insurance.
On August 10, 2009, Pacheco was home caring for his children when another hair dresser “Hugo” called to see if Pacheco could cover his appointments at Tina's Hair Salon. It was during that shift that the salon was robbed and Pacheco killed.
Diaz did not call Pacheco to work that day and was unaware that he was working.
Based on these findings, the ALJ concluded that Brito–Pacheco was not an employee of the Salon either under the common law, or as a “statutory employee” under § 287.040. The Commission adopted the ALJ's decision as its own, over the dissent of one of its members. Brito–Pacheco's dependents appeal.
“In the workers' compensation context, where the facts are not in dispute as to the nature of the agreement and the work required by it, the existence or absence of statutory employment is a question of law for the courts to decide.' ” McCracken v. Wal–Mart Stores East, LP, 298 S.W.3d 473, 476 (Mo. banc 2009) (quoting Bass v. Nat'l Super Mkts., 911 S.W.2d 617, 621 (Mo. banc 1995)).
Appellants do not dispute that Brito–Pacheco was an independent contractor. They argue, however, that Brito–Pacheco's arrangement with Tina's Hair Salon satisfied all of the requirements necessary to render him a statutory employee, and that the Commission's decision must accordingly be reversed. We disagree.
Section 287.040.1 provides:
Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.
Section 287.040.1 “is designed to prevent employers from evading the Act's requirements by hiring independent contractors to perform work the employer otherwise...
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