A Little History

 

On  May 7, 2015, The New York Times ran a 2-part exposé on the nail salon industry in New York that caused a big public outcry.  The first part focused on egregious (and allegedly rampant) labor abuses, including wage theft and the withholding of workers' tips. The second part focused on what the writer saw as the industry's disregard for worker safety.  On May 10, 2015, New York Governor Andrew Cuomo announced the creation of the New York State Nail Salon Industry Enforcement Task Force to help address these issues.

 

The Task Force has implemented a number of initiatives, including requiring all nail salons to prominently post signs (in multiple languages) informing workers of their rights. It also created new, free training initiatives to help unlicensed salon workers improve their skills and study for the state licensing exam. Another initiative that came out of The Task Force was a requirement that all nail salon owners purchase a "wage bond" as insurance in the event of litigation by workers for non-payment of wages. This generated significant pushback from salon owners, especially from those who had never had any labor abuses. In September 2015, the Korean-American Nail Salon Association (KANSA) partnered with the Chinese Nail Salon Association to protest the wage bond matter and filed a lawsuit against New York State. The suit was dismissed by a judge in December 2015. Now all nail salons in New York state must purchase a wage bond, renewable annually, even in the absence of any past labor abuses.

 

On May 9, 2016, Governor Cuomo announced that the Task Force had opened investigations into 450 nail salons and completed 383 of them.  Of the 383 nail salons investigated, 143 nail salons were required to pay $2 million in unpaid wages and damages to 652 employees.  It is important to point out, however, that much of that $2 million was NOT for wage theft but actually due to paying a fixed daily wage instead of an hourly wage – a longstanding nail salon industry practice many salon owners failed to realize was not in compliance with NY State labor laws.

 

On July 21, 2016, Governor Cuomo announced major new regulations that could have significant business implications for nail salon owners.  Extensive new ventilation requirements go into effect October 3, 2016 in all NEW nail salons (by 2021 for all existing nail salons), designed to protect the health of its workers. The new ventilation must comply with the 2015 International Mechanical Code, a previously voluntary standard set by the International Code Council (an organization that devises minimum safety standards for workplaces and other spaces). The new regulations have many salon owners very concerned and questioning whether, in light of all the safety improvements that have been made to nail salon products in recent years, there is really a need for such enhanced ventilation. 5-free nail polishes (no toluene, no Dibutyl Phthalate, formaldehyde, camphor or formaldehyde resin) and odorless UV gel and acrylic nail systems are pretty much the norm in modern salons, creating a substantially less toxic environment. It seems that NY State has collected very little on-site data to buttress their claims that the new ventilation system is needed. In fact, The New York Times article reporting on the new regulatory measure quotes Alphonso David, counsel to Governor Cuomo, as saying "The state has acted despite the fact that research is limited on the extent to which nail salon workers are exposed to harmful chemicals and whether a connection can be drawn between them and workers' health."

 

Retrofitting existing nail salons to be in compliance with the new mandated ventilation requirements is likely to be very costly (perhaps into the six-figure range).  More important, however, in many cases (e.g., nail salons located in densely-populated areas like NYC's Manhattan where almost all buildings are attached to the building next door), it will simply not be possible at all, based on our understanding of the new 2015 International Mechanical Code requirements that are going into effect, which require a point of egress for the newly- mandated exhaust capture that is outside and at least ten feet away from the building.  In such cases, the only logical source of egress would be the rooftop, but virtually no landlord is likely to allow a hole to be cut through all the building's floors to pipe that out.  That means the nail salon would have to close down.

 

Clearly, more research is needed and a better, more workable solution should be identified.