After Reforms, Why Are Nail Salon Workers Not Seeing Swift Justice?

It has been nearly one year since New York Gov. Andrew Cuomo and the New York State Legislature implemented a series of reforms to protect nail salon workers. The anticipated wave of salon closings that was to be caused by these new laws and regulations never came close to materializing.

Last month, nail salon owners and their outspoken supporter, New York State Assembly member Ron Kim (D-Queens), traveled to Albany for a rally on February 29, claiming that nail salons are facing disproportionate scrutiny within the larger appearance enhancement industry (which includes hair salons, waxing, cosmetology and more) because nail salons are largely Asian-owned. The employer associations claim that the effect of Cuomo’s initiatives to protect workers has been to put them out of business.

Lost amid the charges of anti-immigrant discrimination is the fact that the workers benefiting from the reforms of the nail salon industry are themselves immigrants.

As a part of the New York Healthy Nail Salons Coalition, Adhikaar, a worker center organizing nail salon workers, has helped train more than 1,000 workers in recent months about health and safety, as well as their workplace rights.

Workers in nail salons report they are paid far less than the minimum wage and are almost never paid overtime. “They make us sign papers in order to get paid but, they hide most of the paper and only show us the part we have to sign,” said Lidia from Staten Island, who has worked 10 hours a day, five days a week, for the last five years and asked to be identified by a pseudonym for fear of reprisal. “They told us if an inspector comes, we should tell them that we get a lunch break.” Among all the workers contacted by the coalition, while some have been fired in retaliation, none have lost their jobs as a direct result of a salon closure.

While invoking the rights of the Asian and immigrant communities, the salon owners and Assembly member Kim are only trying to protect their own interests.

Clearly they are not trying to protect the thousands of Chinese, Korean, Nepali, Tibetan and Vietnamese immigrants working in nail salons. Nor are they concerned about the immigrants from Mexico, Ecuador and Eastern Europe (and other parts of the world) who put in long days for little pay performing manicures and pedicures at bargain-basement prices that have not kept up with inflation.

These owners contend the reforms are discriminatory and create an unbearable financial burden for the Chinese- and Korean-American salon owners who have put all their resources into their small business in pursuit of the “American Dream.”

To make their case in court, the salon owners worked with FordHarrison, an international employer-side law firm. Its website highlights cases against workers on behalf of employers on a “broad range of wage-and-hour issues such as off-the-clock work, employee misclassification, tip credit, and FLSA (Fair Labor Standards Act) coverage.”

There is no denying the long history in this country of exclusion and discriminatory regulation of predominantly Asian economic niches. For instance, the race-based redlining by banks all over the country has contributed to the persistent, competitive racial dynamics between Black, Latino and Asian communities, as Manning Marable wrote in a chapter in Critical Race Theory: The Cutting Edge.

Within this context, nail salons, restaurants and other small businesses of all sizes rely on long hours, low wages with no overtime, no paid days off and cutting corners on overhead costs. These are all at the expense of workers’ financial and physical well-being.

The workers who are paying the price for these unsustainable labor practices in the nail salon industry are predominantly immigrant women. Some have arrived more recently than others. Many are undocumented, and the vast majority struggle to make ends meet. While industry conditions vary, as immigrant women workers, they face challenges similar to those faced by domestic workers.

There has been significant progress, however, since Governor Cuomo implemented the reforms. These reforms included a historic trainee license program to bring unlicensed workers into the formal workforce, administering the licensing exam in additional languages to help workers with limited English proficiency and a wage bond to protect workers from wage theft.

State inspectors found wage theft at many of the salons they visited. Workers at those salons are now getting paid the hard-earned money they are owed.

It is also good news that the employers’ associations lost their court bid to overturn the newly enacted wage bond on December 1, 2015. The purpose of the bond is to ensure that workers who win judgments against their employers in wage theft cases get paid. The bond thus adds one more layer of protection for workers, similar to workers’ compensation and unemployment insurance.

But there is not always swift justice.

A group of Nepali, Tibetan, Korean and Latina nail salon workers from a Lincoln Center area salon came together two years ago to recover their stolen wages. Despite their brave efforts to speak up for their rights, their employer sold the salon and the women have not seen a dime. “This story is not unique,” said Narbada Chhetri, the director of organizing and advocacy at Adhikaar. “We educate and organize workers and they decide to stand up for their rights, but without legal protection, they are left on the curb and become disillusioned.”

Wage bonds protect workers like these, ensuring their stolen wages are paid, even when employers try to hide their assets — one of several tactics commonly used by businesses to evade justice.

According to the National Employment Law Project, wage bond regulations exist in 38 states. For an average size salon in New York, the premium for wage bonds costs roughly 2 percent of the bond, or about $3 a day — the cost of a tip on a cheap manicure.

The reforms in New York have spurred advocates, elected officials and government agencies around the country to take a closer look at the nail salon industry and take action to protect the workers.

But the question is whether Assembly member Kim and the nail salon owners will join the workers to make New York a model of compliance and sustainable labor practices that protect vulnerable workers.