Photographers risk costly lawsuits if they violate state labor laws by misclassifying assistants and other crew. California attorney Douglas P. Roy explains the risks, and how to avoid them.
PDN: Are photographers and production companies at risk for misclassifying employees?
Douglas Roy: There are several aspects of law where obligations are different, depending on whether a worker is an independent contractor or employee: [state] wage and hour laws that specify what’s the minimum [employees] can be paid, what meal and rest-break requirements are, overtime, and when they have to be paid. Other big [concerns] are workers’ comp and tax withholdings.
PDN: What do photographers and producers need to know about when employees have to be paid?
DR: In California, in most cases, an employee is entitled to be paid in full on the last day of work. And if they’re not, there can be waiting time penalties assessed against the employer for the full amount of regular wages for every day that the wages aren’t paid, for up to 30 days. A statutory exception applies to film, television, TV commercials and music videos. In those industries, it’s permitted to pay on the next regular pay cycle after the job ends. This is strictly because the film and television industry lobbied for that exception. The photo industry isn’t included in that exception.
PDN: In film and TV production, it seems like everyone is classified as an employee. Why is it that in the photo industry, crew members are classified as independent contractors?
DR: Film and television work slightly differently [because] unions become involved in those industries. Through the collective bargaining, it’s more clearly delineated [who is an employee and who is an independent contractor], what rate they’re going to be paid and how they’re going to get paid.
PDN: Is it complicated to determine whether photo shoot crew members should be classified as independent contractors or employees?
DR: Classification can be complicated, especially in a business like commercial photography because of the way jobs are structured, who’s in charge, and the way money flows. There’s no single determinative factor whether [a worker] should be classified as an employee or an independent contractor. But the analysis boils down to the same central issue, which is 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.
PDN: Aren’t there certain photo shoot crew members that are clearly employees rather than independent contractors? For instance, photo assistants and stylists are clearly employees, aren’t they?
DR: When the courts look at this question, they look at: What did the parties intend, and how did they draft their agreements and contracts? Also whether the worker maintains a separate business entity; who provides for the tools and facilities needed to get the job done; whether there’s a specialized skill or education that’s required; who dictates the work schedule; whether the work is part of the regular business of the employer; and the extent of the rights of the employer to fire the worker without cause. And what becomes complicated about this is that when apply those factors to various members of the crew, you may come to different conclusions depending on the job. Certainly there can be some generalizations that are drawn. And there are some industry standards. But the court is going to dig beyond those industry standards and really look at the particular factors of the case.
I know it’s frustrating to hear a complicated answer to what should be a simple question, and unfortunately the state of the law is that there is no clear bright line because there is no one determinative factor that’s going to give you the answer as to whether the person is an employee or an independent contractor.
PDN: But there are stiff penalties for misclassifying an employee as an independent contractor. So doesn’t it make sense to err on the side of caution and consider everyone on set an employee and pay them accordingly?
DR: It’s difficult to talk in generalities, because it really depends on the circumstances. The advice I give to clients is to find an attorney that really understands the photo business and how these jobs work because they are going to be put into a position where they have to make judgment calls with respect to classification. One specific example that comes to mind, to address your question of why not treat everybody that’s on a crew as an employee, is that some folks who are on the crew run separate business entities. They are LLCs, which are corporations. And a [worker who is incorporated] can’t be treated as an employee.
PDN: Can a photographer protect him or herself by hiring a producer to run the set, so the producer is legally liable for any misclassifications?
DR: That raises the question of: Who is the employer? Is it the person that’s responsible for making the hiring and firing decisions? Is it the person that’s ultimately buying the creative and ultimately has the authority over the creative? Is it the person giving directions on set? Is it the person that’s signing the checks? And on a photo set, that could be three or four different people or entities. You’ve got a producer, you’ve got a photographer, you’ve got an ad agency, and you’ve got an end client. California recognizes a concept that an employee can have multiple employers, and that the multiple employers bear responsibility and obligation to make sure that things like wage and hour laws are taken care of. That being said, there are also ways to structure contracts among all of those players, to more clearly delineate who’s going to be responsible for what conduct and who’s going to bear the liability in the event that some or all of them get served with a lawsuit by a worker [for employment law violations].
PDN: What about models? Why are they always considered employees on photo shoots?
DR: In California, there’s published case law in which the court made the determination [that] the model was the employee, or should have been treated as an employee for the purposes of the photo shoot.
PDN: Was that Smith v. L’Oreal?
DR: Smith v. L’Oreal is about when an employee has to be paid. In California, an employee has to be paid in most cases on the last day of work. L’Oreal looked at when is the last day of work, and the court decided that if a job comes to its natural conclusion, like it’s a one-day shoot, that means the job is over at the end of that one day, so employees are entitled to be paid on that day.
PDN: What case established that models are employees?
DR: There’s an earlier case called Zaremba v. Miller, and as far as I can tell, that’s the earliest case that looked at the question of whether a model on a photo shoot is an employee or an independent contractor. The court made the determination that the model was, in that case, an employee. That’s the case that tends to get cited over and over again, and applied to this question of how should you be classifying models.
PDN: Have there been no cases that get to the question of how crew are classified?
DR: I’m not aware of any published opinions in California that look at this classification question of other crew members that are on a photo set.
PDN: Besides hiring a lawyer to help you classify workers, what other practical advice do you give photographers about how to classify crew members?
DR: When you’re dealing with ad agencies and end clients, you really need to be insistent on getting advance that’s going to cover your expenses, including wages, before the shoot starts.
PDN: Why? So you can pay wages at the end of the shoot day, as if everyone on set is an employee?
DR: Right, to make the decision either about issuing checks at the end of the shoot day, or at least to make sure that you’re promptly processing checks. What you really want to avoid is a scenario where a production company or a photographer is waiting 30, 60, 90 days sometimes to be paid. That’s where you start to hear these really unfortunate stories [about] producers and the photographers who are really stuck in a hard place because they didn’t get an advance and they’re not able to put pressure on the client and the ad agency to get paid.
The final point of advice I give clients is to make sure that you maintain insurance, and a variety of insurance, to cover all of the risky aspects of your business, [with] adequate limits. Understand what the limits are and the boundaries of all of those policies are. There are a lot of different products that are available to all sorts of different employers and some that are more specific to this world [of photography]. But I do think having a good insurance broker and a good lawyer to help you to navigate through this whole process is invaluable.
PDN: Are you talking about insurance that covers you if you get sued as a result of misclassifying crew members?
DR: Yeah, there is an insurance product called employment practices liability or an EPL policy. That would cover a lot of these areas with respect to how employees are treated, classified, and paid.
Photographers at Risk for Treating Crew as Independent Contractors