A recent class action lawsuit against a California advertising photographer comes as a warning that standard practices for hiring and paying crew have not kept up with state laws. Producers, photographers and clients may all be at risk of legal action.
The advertising photographer is being sued by a freelance director he hired for two productions in early 2017. The director claims that the photographer misclassified him as an independent contractor and as a result, failed to pay him in a “timely manner.” The director’s lawyer has already won multi-million dollar settlements for similar class-action claims against Costco, Exxon and other employers. The lawyer is now seeking access to the photographer’s records, with intent to identify other crew the photographer failed to pay on time, and recover damages on their behalf.
The photographer has declined to comment for this story, and has asked PDN to withhold his name to avoid attracting claims by other crew he’s worked with.
Others in the industry are at risk if they don’t know that various freelance crew members qualify as employees, not independent contractors—at least in California and New York. Employers in those states—including photographers and producers—must withhold taxes from the wages of employees, provide workers’ comp and unemployment insurance, and in California at least, pay employees immediately at the end of a job.
“It’s a huge can of worms,” says a freelance ad agency art buyer who asked for anonymity to protect relationships with her clients. “[M]any New York agencies and most editorial entities are refusing to reimburse any cost associated with payroll.” Those costs can increase crew expenses on a shoot by 20 to 30 percent.
The statutory penalty under California law for “willfully” misclassifying an employee as an independent contractor is now a minimum of $5,000 per infraction. And the statutory penalty for failing to pay an employee in California at the end of a job—including a still photo shoot—is the employee’s day rate times the number of days the paycheck is delayed, up to a maximum of 30 days.
“In California, technically we have to pay [crew] at the end of the day. I didn’t know that until recently. Nobody has [made] a fuss about it,” says Joy Asbury, principal of Joy Asbury Productions in Los Angeles.
Don Pickard, CEO of Tom C. Pickard & Co, a California-based provider of business insurance for photographers and producers, says claims for wage and hour violations are on the rise. “We’ve had maybe ten lawsuits that I can think of” filed by freelance crew over delayed payments. “Say you’re a PA [production assistant], and at the end of the shoot, the photographer says, ‘I’ll mail you a check’ [but doesn’t] physically hand it to you. Then that assistant can go to the EDD [California Employment Development Department] and say, ‘I didn’t get paid’ and file a complaint.”
Pickard continues, “Photographers have forever assumed that anyone [whose wages are reported] with a 1099 form is an independent contractor, and therefore the photographer is not responsible” for wage, tax and workers’ comp insurance compliance. “And that’s just wrong,” Pickard says.
“There are very few individuals on set that would qualify as independent contractors in this day and age. Anybody who has the word ‘assistant’ in their job title cannot be classified as an independent contractor,” says a New York-based producer who asked to remain anonymous. Stylists may also not qualify as independent contractors, he adds.
It is maddeningly difficult to determine which workers are independent contractors, and which are employees. “There’s no single determinative factor. It’s based on a totality of circumstances,” says Douglas P. Roy, an LA attorney specializing in intellectual property and employment law. “Different jurisdictions and governing bodies have articulated the tests for this slightly differently. But the analysis boils down to who has the right to control the manner and the means of accomplishing the desired result. If that’s the worker, then he or she is an independent contractor, and if it’s the employer, then that worker should be [classified as] an employee.” (See: How to Figure Out the Employment Status of Your Crew—And Why It Matters)
The multi-pronged test for classification, Roy concedes, doesn’t give “the amount of certainty that most employers wish they had…They’re having to make judgment calls and business decisions.” So his advice is to insist on getting an advance from a client “that’s going to cover your expenses, including [crew] wages, before the shoot starts.”
Clients already advance expenses and pick up the payroll costs for talent. That’s because of Zaremba v. Miller, a California state court decision holding that models qualify as employees rather than independent contractors, Roy explains.
Meanwhile, the film and commercial TV production industry has treated all crew members as employees for decades. Their payroll costs are passed on to clients, and production doesn’t start until those clients advance 100 percent of all expenses.
“It’s [never] an uphill battle to get payroll costs approved [by clients] on a commercial project. There are standard practices and standard rates that are understood and respected,” the New York producer says. But many of those clients treat still photo productions differently. “We’ve been told that [payroll costs] are the cost of doing business for us, and not the burden of the end client,” he says
“[Ad] agency people need to be more educated, and in turn educate their clients that this is the proper way to work. These protections are for the agency and the client, and are not optional or fictional, as many seem to think,” the freelance art buyer says.
Among producers and photographers’ reps, there is a rising sense of urgency to bring all clients around. “This is the biggest issue discussed among producers for the last three years,” says the art buyer.
Unfortunately, there are no quick or easy solutions. Producers have been in discussions with the Association of Independent Commercial Producers about AICP representation for still photo producers. AICP has been advocating and lobbying on behalf of film and commercial producers since the 1970s, ensuring that advertising clients comply with the standard practices of the commercial production industry.
But the AICP membership costs are prohibitive for some still photo producers. And a number of still photo producers are ideologically opposed to unionizing. The New York producer PDN interviewed is among them. “We think each company can take care of these issues by properly advocating for themselves, and communicating to clients what their needs are and what the rules are.”
So for now, at least, photographers and producers have to figure out how to comply with the relevant laws and mitigate the legal risks on their own.