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Posted October 2019 by S. Ward Heinrichs
Are San Diego Tattoo Artists Independent Contractors?
After Governor Gavin Newsom signed AB5 into law, the answer to the question about the employment status of tattoo artists depends on many things.
AB5 will go into effect on January 1, 2020, leaving it up to the ABC test to determine who is, and who is not, an employee, at least in most cases. AB5 is already having a big impact on shops across California. For more information CLICK HERE
As a result, many more gig economy workers and other independent contractors will be re-categorized as employees. However, the law exempts many different business types and business relationships from the ABC test. Tattoo artists potentially would be exempt under the “Professional Services” exemption.
One of the professional services listed in that exemption is “fine artists”, and tattoo artists might be exempt as fine artists if they meet the other requirements of the exemption:
(A) The individual maintains a business location, which may include the individual’s residence, that is separate from the hiring entity. Nothing in this subdivision prohibits an individual from choosing to perform services at the location of the hiring entity.
(B) If work is performed more than six months after the effective date of this section, the individual has a business license, in addition to any required professional licenses or permits for the individual to practice in their profession.
(C) The individual has the ability to set or negotiate their own rates for the services performed.
(D) Outside of project completion dates and reasonable business hours, the individual has the ability to set the individual’s own hours.
(E) The individual is customarily engaged in the same type of work performed under contract with another hiring entity or holds themselves out to other potential customers as available to perform the same type of work.
(F) The individual customarily and regularly exercises discretion and independent judgment in the performance of the services.
At this time, I cannot say for sure whether tattoo artists would qualify as fine artists. The courts will need to decide how to define that term, but other laws define similar terms. Based on those laws and my instincts, I think tattoo artists have a good chance at qualifying as fine artists. Assuming they do and assuming they meet the above A-F requirements, the ABC test would not determine their status as independent contractors. However, the old independent contractor test under a case called Borello would still apply.
Under the ABC test, tattoo artists who work as independent contractors in a tattoo parlor would probably fail the B prong of the ABC test because they perform work that is in the usual course of the parlor. In contrast, the Borello test has eleven factors, and a judge or jury has great latitude to determine which factors matter the most.
Control by the business that pays wages is usually the most important factor under Borello. Accordingly, the tattoo parlor’s level of control of the artists would probably have a large influence on whether the artists were independent contractors or employees.