Brito-Pacheco v. Tina's Hair Salon

400 S.W.3d 817, 2013 WL 1801709, 2013 Mo. App. LEXIS 524
CourtMissouri Court of Appeals
DecidedApril 30, 2013
DocketNo. WD 75062
StatusPublished
Cited by3 cases

This text of 400 S.W.3d 817 (Brito-Pacheco v. Tina's Hair Salon) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brito-Pacheco v. Tina's Hair Salon, 400 S.W.3d 817, 2013 WL 1801709, 2013 Mo. App. LEXIS 524 (Mo. Ct. App. 2013).

Opinion

ALOK AHUJA, Judge.

The Labor and Industrial Relations Commission denied workers’ compensation benefits to the dependents of Mauro Bri-[819]*819to-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.

Factual Background

As of 2009, Mauro Brito-Pacheco had worked as a barber at Tina’s Hair Salon for seven years. The Salon’s owner, Au-gustina 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. [820]*820It was common for stylists to give free haircuts to Mends 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-Pacheeo’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 babysitter 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 nonattendance 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’ compensa[821]*821tion benefits were therefore owing. The AJLJ’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.

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Bluebook (online)
400 S.W.3d 817, 2013 WL 1801709, 2013 Mo. App. LEXIS 524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brito-pacheco-v-tinas-hair-salon-moctapp-2013.