March 13, 1990

The Honorable Alan Wheat
United States House of Representatives
811 Grand Avenue, #935
Kansas City, Missouri 64106-1997

Dear Congressman Wheat:

Thank you for your letter of January 9, to Ms. Ruth Knight, Director of Intra-Governmental Affairs for the Occupational Safety and Health Administration (OSHA). Your letter transmitted correspondence from your constituent, Ms. Paula J. Sego, who requested a clarification of OSHA's Hazard Communication Standard (HCS), 29 CFR 1910.1200, as it applies to independent contractors operating in beauty salons. The applicability of the HCS (and indeed of all OSHA standards promulgated under the Occupational Safety and Health Act of 1970 ("the Act")) depends on whether any of the individuals in the workplace are employees or employers as defined under the Act and under the HCS. An examination of the actual economic relationship that exists between the individuals in a workplace is necessary to determine if an employee/employer relationship exists and, therefore, if the provisions of the Act and the HCS apply. Operators or other workers simply calling themselves "independent contractors" or using contractual agreements does not automatically transform these individuals into "independent contractors" nor relieve the salon operator from responsibility as an employer.

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Determination by OSHA regarding the applicability of the Act and the HCS in uncommon employment situations such as the one described in your constituent's letter is always made on a case-by-case basis. First, a determination of whether any of the entities engaged in the salon's business are functioning as employers or employees under the OSH Act must be made. No single criterion exists that, in and of itself, determines if an employer/employee relationship exists. When evaluating divergent work situations in order to determine the applicability of OSHA coverage, OSHA utilizes the following criteria:

1. Whom do the workers consider their employer, or do they consider themselves self-employed?

2. Who pays the workers' wages? Who establishes the level of pay? How are wages established?

3. Who has the actual power or ability to control the workers? Who actually directs or supervises the worker's daily and overall activities, assigns work, decides whether work is satisfactory, and establishes work schedules including hours of work, vacation and sick leave?

4. Who has the responsibility, as opposed to the actual power, to control the workers?

5. Does the worker's ability to increase their income depend on simple efficiency rather than initiative, judgment or foresight? May the workers increase their income through the exercise of business judgment?

6. Who has control over the work environment such that hazards may be abated? Who owns or furnishes the equipment and physical worksite? And, especially pertinent to beauty salons and OSHA's HCS, who controls (and supplies) which chemicals (shampoos, dyes, etc.) are to be used?

If, utilizing the above criteria, OSHA determines that an employee/employer relationship exists, as set forth under the Act, then a determination on the applicability of the Hazard Communication Standard is performed. The HCS applies if an employer is engaged in a business where chemicals are either used, distributed or produced and if an employee may be exposed to hazardous chemicals under normal operating conditions or in foreseeable emergencies.

In some situations, a beauty salon might qualify as a multi-employer workplace under the HCS. For example, each operator could act as an employer and hire an employee to shampoo and perform other work. OSHA's compliance officer would have to determine whether each operator and shampooist had an employee/employer relationship under the OSH Act criteria listed earlier. Then it would be necessary to determine if the HCS applied (Does the operator use, distribute or produce chemicals in the business and may the shampooist be exposed to hazardous chemicals?). If more than one operator is an employer under the HCS, then the multi-employer worksite provision applies, and information regarding the hazardous chemicals, including MSDS, labels and appropriate precautionary measures must be included in each employer's hazard communication program. OSHA realizes that the applicability of the provisions of the HCS is sometimes a difficult issue in the type of workplace situations described by Ms. Sego. Hopefully, however, the information in this letter will be beneficial to your constituent and help clarify the concerns she raised. Please feel free to contact us again if we can be of further assistance.

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Sincerely,

Gerard F. Scannell Assistant Secretary

cc: Washington D.C. Office

January 9, 1990

Ms. Ruth Knight
Director of Intergovernmental Affairs
Occupational Safety and Health Administration
U.S. Department of Labor
200 Constitution Ave., N.W.
Room N364l
Washington, D.C. 20510

Dear Ms. Knight:

Enclosed please find correspondence received from Ms. Paula J. Sego, who is one of my constituents. Ms. Sego would appreciate a clarification of OSHA Hazard Communication Standard, 29 C.F.R. 1910.1200. Ms. Sego does not understand why independent contractors who operate out of the same salon are not subjected to the same standards as a salon owner with employees. She believes in both cases there is the same risk of chemical source illness and injury.

I would appreciate your review of this matter and any information you can provide which will help me respond to Ms. Sego. Please respond to my Kansas City office, and thank you for your assistance.

Sincerely,

Alan Wheat Member of congress

DECEMBER 27, 1989

REPRESENTATIVE ALAN WHEAT 811 GRAND ROOM 935 KANSAS CITY, MO. 64106

DEAR REPRESENTATIVE WHEAT:

I AM WRITING TO YOU FOR ASSISTANCE IN CLARIFYING THE ATTACHED INTERPRETATION LETTER. MY COMPANY, CHEMICAL COMMUNICATION INC., GETS BUSINESS OWNERS INTO COMPLIANCE WITH THE OSHA HAZARD COMMUNICATION STANDARD (HCS).

ONE OF MY CLIENTS IS A SALON OWNER WITH 24 INDEPENDENT CONTRACTORS. MY CONCERN IS THE DEFINITION OF AN "INDEPENDENT CONTRACTOR" IN RELATION TO THE HCS, 29 C.F.R. 1910.1200. FROM MY INTERPRETATION AN INDEPENDENT CONTRACTOR WHO RENTS SPACE IN A WORKPLACE IS NOT REQUIRED TO PROVIDE THE SALON OWNER COPIES OF THE MATERIAL SAFETY DATA SHEETS (MSDS) OF THE CHEMICALS THEY USE IN PERFORMING THEIR WORK.

IF THE SALON OWNER HAS AN EMPLOYEE, IT IS HIS RESPONSIBILITY TO MAINTAIN THE MSDS's OF THE CHEMICALS USED IN THE WORKPLACE. IF THE SALON OWNER HAD NO EMPLOYEES, NO MSDS's WOULD BE OBTAINED FOR THE ENTIRE CHEMICAL INVENTORY IN THE WORKPLACE. I UNDERSTAND THAT WHEN A PERSON WHO WORKS FOR THEMSELVES, BY THEMSELVES, (BEAUTY SALONS OPERATED IN THE HOME) THEY WOULD NOT BE COVERED BY THE HCS, BECAUSE NO EMPLOYEE/EMPLOYER RELATIONSHIP EXISTS. THAT SITUATION IS COMPREHENSIBLE. THE ONLY PERSON THEY ARE AFFECTING BY OVEREXPOSURE TO THE CHEMICALS IS THEMSELVES.

THE CONSUMER/CUSTOMER IS NOT, AS YET, PROVIDED THE MSDS FOR THE CHEMICALS THEY ARE EXPOSED TO BECAUSE THE EXPOSURE IS ON A CONSUMER LEVEL. BUT WHEN YOU HAVE 24 INDEPENDENT CONTRACTORS, OVEREXPOSING NOT ONLY THEMSELVES BUT THE OTHER INDEPENDENT CONTRACTORS, WOULD THESE PEOPLE (INDEPENDENT CONTRACTORS), WHO ARE NOT CONSIDERED EMPLOYEES BE IMMUNE FROM THE CHEMICAL SOURCE ILLNESSES AND INJURIES THAT CAN OCCUR. THAT IS THE INTENT OF THE HCS, TO REDUCE CHEMICAL SOURCE ILLNESSES AND INJURIES. INDEPENDENT CONTRACTORS, AND THE LEGALITY, IS A CONTROVERSIAL ISSUE IN THE COSMETOLOGY PROFESSION. MANY SALON OWNERS WITH EMPLOYEES HAVE BEEN INFORMED BY INDEPENDENT CONTRACTORS THAT THEY ARE EXEMPT FROM COMPLYING TO THE HCS. SALON OWNERS ARE CONFUSED AS TO WHY IF THEY ARE EXPOSED TO THE SAME CHEMICALS AS THE INDEPENDENT CONTRACTOR, DO THEY HAVE TO OBTAIN INFORMATION ON THE CHEMICALS.

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THE TERM "INDEPENDENT CONTRACTOR" NEEDS A CLEAR DEFINITION APPLICABLE TO THE HCS. FEEL FREE TO CALL ME FOR FURTHER INFORMATION.

I WOULD LIKE TO SPEAK TO YOU PERSONALLY WITH REGARD TO STANDARDIZING THE NON-MANDATORY OSHA FORM 174 FOR THE MATERIAL SAFETY DATA SHEETS.

YOUR ASSISTANCE IS APPRECIATED.

Paula J. Sego

ATTACHMENT

U.S. DEPARTMENT OF LABOR
Occupational Safety and Health Administration
911 Walnut Street, Room 406
Kansas City, Missouri 64106

Reply to the Attention of: ARA/TS

STD 1-23

November 27, 1989

Ms. Paula J. Sego Chemical Communication, Inc. P.O. Box 16701 Kansas City, Missouri 64133

Dear Ms. Sego:

This is in response to your letter of November 6, 1989, requesting a clarification of how the Occupational Safety and Health Administration (OSHA) Hazard Communication Standard (HCS) applies to independent contractors working in a beauty salon.

With regard to your first statement that a salon owner "has twenty-six independent contractors who work in his salon ...". If these "independent contractors are in fact persons who are not controlled by the salon owner in terms of, for example, the manner in which they perform their work, and instead are merely "renting" the spaces that they occupy to execute their professional duties, these persons would not be covered by the rule. However, if any of these "independent contractors employ an assistant or assistants for various duties, these assistants would be entitled to training regarding the safe use of chemicals. Additionally, if the salon owner or the "independent contractors" individually or collectively employ any other worker, such as but not limited to receptionists or maintenance personnel as part of the normal operation of the salon, these employees by virtue of their actual or potential exposure to hazardous chemicals, would also be entitled to training regarding the safe use of chemicals.

With regard to two of the three questions you raise concerning the imposition of fines on the salon owner for violations of the HC rule, before any decision is reached by OSHA as to who may receive a citation and what penalty may be imposed, an effort is made to determine the controlling employer as well as responsibility for workplace safety and health on a case-by-case basis. With regard to the second question you raise of "Should the salon owner receive copies of MSDSs from his independent contractors?", this will, for a large part, be dependent on the owner's employments' of other persons at the salon. However, where MSDSs are required to be maintained, it would probably be most efficient for the salon owner to coordinate this function. Regardless of who does the coordinating, it is the responsibility of each employer to provide other employer(s) MSDSs if the other employer(s) will have employees exposed or potentially exposed to hazardous substances.

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Sincerely,

Janice P. Barrier Assistant Regional Administrator for Technical Support