Monday, January 18, 2021


Mauro Brito-Pacheco worked as a barber at Tina’s Hair Salon, which was owned by Augustina Diaz. In addition to being the owner of the salon, Diaz was a hair stylist. Diaz rented spots to other stylists and claimed to retain no control over them. She merely collected 50% of their fees from clients in exchange for the spot in the salon. Diaz did not tell them when to work, what clients to have, or how much to charge their clients.

On the day giving rise to the workers’ compensation claim, Brito-Pacheco was called by a third stylist who asked Brito-Pacheco to cover a shift. While covering for the third stylist, the salon was robbed and Brito-Pacheco was shot and died. His widow sued made a claim for workers’ compensation benefits against Diaz.

The question was whether or not Brito-Pacheco was a statutory employee under §287.040.1. No party disputed that Brito-Pacheco was an independent contractor. He had his own clients, received no benefits or salary from Diaz, and he was free to schedule appointments when he pleased and to take any days off that he pleased. Diaz took 50% of any money that Brito-Pacheco made from his clients.

Under § 287.040.1, a person is a statutory employee if:

The work is performed pursuant to a contract

The injury occurs on or about the premises of the alleged statutory employee

The work is in the usual course of the alleged statutory employer’s business.

The court presumed that Brito-Pacheco satisfied elements one and two listed above, but found that Brito-Pacheco’s work was not performed in the usual course of Diaz’s business. The court stated that “Rather than contracting with Brito-Pacheco to have him perform some portion of the Salon’s work, the Salon simply provided Brito-Pacheco with a facility within which he could apply his trade.”

This decision is something of Pyrrhic victory for employers. On its face, employers have secured a victory with the courts. However, the decision partially opens the door for employers to face liability for civil suits from independent contractors who should otherwise be statutory employees.