Cuomo Orders Emergency Measures to Protect Workers at Nail Salons

Diana Uhimov, May 22, 2015

On May 10, 2015, Governor Andrew M. Cuomo announced that he would enact emergency measures to combat the wage theft and workplace safety hazards faced by the thousands of people who work in New York State’s nail salon industry. The new rules come after a series of New York Times articles brought to light the working conditions and potential health risks suffered by nail salon employees who are often times immigrants with a high language barrier and unaware of their rights. The articles exposed widespread labor law violations including underpayment and nonpayment of wages, discrimination, verbal and physical abuse, as well as exposure to dangerous chemicals because of inadequate safety measures.  At one salon, new employees must pay $100 to work, then work unpaid for several weeks, before they are started at $30 or $40 a day.  A manicurist at another salon earned about $200 for each 66-hour workweek, amounting to approximately $3 per hour. But on snowy days, she would receive nothing. Even more horrifying are reports of repeated miscarriage, birth defects, breathing problems, and skin conditions among manicurists.  New York State acted quickly and aggressively to tackle the uncovered exploitation of salon workers, in accordance with its longstanding labor law enforcement practices.

A multiagency task force has been instituted to immediately begin conducting investigations of individual salons, and establish new safety rules that salons must follow to protect manicurists both from chemicals and contagious skin conditions.  According to the U.S. Occupational Safety and Health Administration, there are potentially dangerous chemicals in nail polishes, glues and other materials used by manicurists, including formaldehyde which can cause cancer. Key features of the new safety regulations include: protective equipment, such as gloves and face masks, that each work station be equipped with personal fans, and that adequate ventilation be provided.

The emergency measures also aim to address unlawful wage practices reported to be commonly engaged in by nail salon owners such as, paying workers below minimum wage, not at all, or even charging money for a job. Educational outreach efforts designed to apprise workers of their state law rights are included in the measures to encourage manicurists to report any abuses, regardless of their immigration status.  Governor Cuomo’s office has ensured that the agencies involved in the task force will not inquire about workers’ immigration status as part of their investigations. As part of the new measures, salons will be required to post signs concerning workers’ rights in multiple languages. Also, as a means for providing an enforcement mechanism capable of covering claims for unpaid wages, nail salons will have to secure a bond or an additional insurance policy as part of their licensure. Nail salons that do not comply with orders to pay their workers back wages, or are unlicensed, will face penalties such as license revocation, fines and even business shutdowns.

Workers can file wage claims with the Department of Labor or file an action in court. In fact, two manicurists have already filed a class action in the Federal Court of the Southern District of New York, in the case Fernandez et al v. Nailsway Inc. et al.  The action was filed against nail salons located in Manhattan’s Upper East Side neighborhood.  The complaint, filed on behalf of 40 employees, alleges that the salons paid their employees a flat daily rate in cash every week which did not amount to minimum wage, failed to pay overtime, and did not permit their employees to take meal or rest breaks.

The increased publicity of nail salon practices, combined with workers learning that they may be entitled to additional wages will create incentives for filing claims, just as wage and hour claims in the restaurant industry increased after similar coverage over the industry’s wage practices. Although many workers are undocumented and are hesitant to file lawsuits out of fear of exposing themselves to the authorities or jeopardizing their employment, an upswing in litigation is predicted as this new information reaches immigrant communities.

The NY State Health Department will analyze and make findings about the most effective safety practices needed in nail salons in order to put in place permanent safety rules, which may differ in scope from the current emergency measures.  Employers are advised to maintain proper records and review their employment practices to ensure compliance with wage and hour laws and OSHA requirements, as increased agency investigations can often lead to enforcement actions and/or litigation.