It has happened to clients of mine, and they're not alone. The only difference between you and the photographers and companies receiving these nasty-grams? Maybe pure luck.
These “late” payments are driving big settlements across California, as plaintiff-side lawyers seek out models for the purpose of filing lawsuits. One court has already sided with a model and awarded the money.
How and why is it happening?
Every day after a photoshoot you don’t pay a model, they can sue for full day rates — up to 30 days
Here is a familiar scenario: Your company wants a print advertisement and so you hire a photographer, who in turn hires a model for a one-day photoshoot. You give the photographer general guidelines of what you want in your advertisement, but leave the rest to the photographer’s creative abilities. The photographer conducts the photoshoot in one day.
A couple weeks after the photoshoot, you receive the photographer’s invoice and pay it a few weeks later. The photographer then pays the model. Sound familiar?
If so, plaintiff-side lawyers are eager to meet you! The plaintiff lawyers want to find you because there is a chance that you’re on the hook for thousands (maybe even $100k+) in penalties, and they want you to pay up. Oh, and if you’re the photographer in this scenario, you’re not getting away either.
Surely, you must’ve misread something, right? Or I’m exaggerating? It is such a common scenario in the photography/advertising industry, there must be some important detail that I’m devilishly leaving out of just so I can keep your attention to this article?
Nope. This is the real world in California.
California law requires that employees be paid all their wages on their last day of employment (or within 72 hours if they resign). Failure to pay an employee on their last day renders the employer liable for a penalty to the tune of a full day of wages for every day that the employee does not receive everything they are due, up to 30 days.
For example, if an employee makes $500 per day and isn’t paid the full amount owed to them upon termination, that employee will be entitled to $15,000 in penalties ($500 x 30 days). If the employee makes $1000 per day, that penalty doubles to $30,000. What if you (or the photographer) pays the model $5000 for a single-day shoot? What if you hired multiple models? Don’t do the math without some Advil nearby.
Failure to pay an employee on their last day renders the employer liable for a penalty to the tune of a full day of wages for every day that the employee does not receive everything they are due, up to 30 days.
In addition, California law provides that the employee is entitled to attorneys’ fees if they hire a lawyer to sue for the penalties. Lawyers aren’t cheap either. (As a lawyer myself, I have no problem with that though.) Just add those attorneys’ fees onto the pile, along with interest at the rate of 10% per year. There are also the issues of providing meal/rest breaks, minimum wage, overtime and expense reimbursements that you’ll need to calculate. The IRS/FTB might have something to say about the missing payroll taxes too.
It adds up fast.
So how does this happen? The key issue is whether your workers are employees or independent contractors. If the workers are your employees, then you’re on the hook for the above.
Employees or Independent Workers: Who Do You Have Working for You?
I know what you’re probably thinking—“Good thing we make clear in a written agreement that our workers are independent contractors!” Bad news, bucko: that might not save you.
"We make clear in a written agreement our workers are independent contractors!" Bad news, bucko.
Whether someone is an employee or an independent contractor is determined by California law, not by any agreement. California law starts with the assumption that the worker is an employee. From there, California then sets out a rather wobbly multi-factor test to determine whether a worker is an independent contractor. The test is wobbly because courts tend to use the test loosely—some factors are more important than others in certain cases, or sometimes courts will add/subtract factors as it deems relevant on a case-by-case basis. Regardless, the most common factors used under California law are as follows:
- Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
- Whether or not the work is a part of the regular business of the principal or alleged employer;
- Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
- The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
- Whether the service rendered requires a special skill;
- The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
- The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
- The length of time for which the services are to be performed;
- The degree of permanence of the working relationship;
- The method of payment, whether by time or by the job; and
- Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative.
Models and photography: An employee dressed up as an independent contractor is still an employee.
Getting into the details for each of these factors would make this article 10x longer, but you get the idea. An employee dressed up as an independent contractor is still an employee. To administer the above test (or something similar), a court is going to go through each of these factors and use a balancing scale to determine whether your worker is more like an employee or an independent contractor.
One California court has already done the test for models. In 1980—yes, that long ago!—a California court determined that a model for a one-day photoshoot was really an employee of the photographer and was entitled to all of her pay on the same day that she worked. (The case was titled Zaremba v. Miller, for those interested.)
California court ruling: model for one-day photoshoot is employee and entitled to all pay same day.
It was immaterial that the model used an agent to find her the work. The court also didn’t care about “the custom of the industry,” which was for the photographer to be paid by the advertising agency before paying the model. Instead, the court was persuaded by the photographer telling the model what to wear, when to appear and what to do. (Imagine that for a model!) The court was also compelled by “the most important factor [which] is the right to control the manner and means” of the worker. With this model, the photographer controlled “every movement and the dress, hours, and place of work” of the model. As a result, and because she did not receive all her pay on the same day she worked, the model was entitled to the type of eye-popping penalties referenced above.
The Zaremba case has not gone unnoticed. Like wolves in the wilderness, plaintiff-side employment lawyers are scavenging the industry for models who have not been paid on their last day of work. With the models as their clients, the lawyers then chase these often-crippling penalties from unsuspecting “employers.”
Like wolves in the wilderness, plaintiff-side employment lawyers are scavenging the industry for models who have not been paid on their last day of work. With the models as their clients, the lawyers then chase these often-crippling penalties from unsuspecting “employers.”
Although the Zaremba case above was just against the photographer, since the case came out in 1980, lawyers have realized that photographers’ pockets often aren’t overflowing with cash. In search for money that they’ll actually see, the lawyers have evolved their technique and now chase whoever associated with the photoshoot has the deepest pockets. (Well, hello there, advertising agencies! And hello to any other company that hired the photographer too!) How do they do this?
The Joint Employment Doctrine: The Law Imposing Penalties on Everyone
The lawyers chase the deepest pockets through a legal doctrine called joint employment, which holds two+ separate entities/individuals liable for what happens with an employee if the two+ entities exhibit enough control over the terms and conditions of employment.
Brands & photographers are being sued as joint employers for “late” pay to models: huge settlements
Let me give a simple example: Company ABC contracts with a temporary staffing agency for one individual to perform work for ABC. Later, the worker claims sexual harassment while he/she worked at Company ABC. The employee will argue that Company ABC and the temporary staffing agency are both his/her employer and both are liable for the sexual harassment.
To transition this example into the model industry: the argument is that the photographer and the advertising agencies (or whoever hired the photographer) are joint employers of the models and so each is responsible for paying the model everything he/she is due. The photographer’s failure to pay the model properly becomes your problem.
The photographer and the advertising agencies (or whoever hired the photographer) are joint employers of the models and so each is responsible for paying the model everything he/she is due.
The question you’re probably now asking is when are two entities joint employers? The answer is complicated because the joint employment laws in California are woefully underdeveloped.
To analyze the application of the joint employment doctrine, the courts make a case-by-case determination using a test that is even less clear than the test for employees/independent contractors. Like the employee/independent contractor test above though, the key issue is control. In fact, as a statement to the lack of proper development of the joint employment laws, many courts will just follow the employee/independent contractor test to determine whether the joint employment doctrine should apply to a certain entity.
Where the law should go, in this humble author’s opinion, is that an entity—even in a joint employment situation—should be liable only for the terms and conditions that it actually controls. (There is some statutory and case law supporting this position, but it is not well-known.) If you aren’t responsible for paying the model, you shouldn’t be on the hook when the model isn’t paid properly. I’m a defense lawyer, though, and my wishful thinking doesn’t make it the law.
Plaintiff-side lawyers have their own wishful thinking and make the usually-oversimplified argument that “those two companies/individuals did it together.” Defense-side lawyers often don’t directly attack the plaintiff-side premise of control or bother to dig into the nuances of the underdeveloped joint employment laws.
The result is plaintiff-side lawyers getting away with using the joint employer doctrine as a sword to attack unsuspecting companies. They take the Zaremba court case, which was against the photographer only, and argue that the joint employment doctrine renders anyone associated with the photoshoot responsible for paying the model. This is a bit of a stretch, but the argument still serves its purpose of scaring companies into settlements.
Plaintiff lawyers are using the joint employer doctrine as a sword to attack unsuspecting companies.
The case law combining the Zaremba court case with the joint employment doctrine isn’t as clear as the plaintiff-side lawyers would hope, but that doesn’t stop them from making the argument in a vitriol-fueled demand letter that arrives on your desk. Once the letter arrives, you then need to decide whether to fight or pay up. Sadly, in law, you pay regardless of which path you choose—there is just a different payee (your attorney) if you decide to fight. Terrified at the thought of litigation, a lot of entities just pony up the cash to settle, wipe the sweat from their brow, and feel lucky at avoiding a courtroom. For plaintiff lawyers, it is then onto the next victim.
Sadly, in law, you pay regardless of which path you choose—there is just a different payee (your attorney) if you decide to fight.
How to Protect Yourself
The obviously-cheaper alternative to fighting in litigation or settling the case is to do your best to prevent the issue in the first place: pay the model everything due on his/her last day of work for the assignment. That means that if you’re not responsible for actually paying the model, ensure that whoever does have that responsibility timely pays the model.
If you’re a photographer, so that you’re not paying a model out of your own finances and hoping the client eventually pays you, you’ll want an agreement for the client to pay you all model fees before any work commences. You can then use that money to pay the models immediately.
If paying the model on his/her final day of the assignment isn’t feasible for whatever reason, you’ll want to fortify your position in case you’re later threatened with a lawsuit. To protect yourself, it is usually a good idea to have a written agreement with each model, photographer and/or other entity involved in the photoshoot that clearly identifies everyone’s respective roles. Minimize your control as much as possible over the photographic/creative process in the written agreement (and in practice). Although it is highly recommendable that you consult with an attorney to prepare it, the written agreement should specify and highlight the control (or lack thereof) that you will have over the process.
It may also be a good idea to have a written agreement with the model that clearly identifies him or her as an independent contractor (even though it isn’t determinative). If possible, have the model perform all his or her own makeup and hair, and provide his or her own clothes. (It is less than ideal, but maybe more practical for the industry, if these perks are only made available for the model, rather than characterizing them as mandatory.) The written agreement should also identify the model as being paid by the job, not by the day. You’d also want to highlight the special skills of the model, including any past jobs that reflect him or her as having a distinct business and having a special skill.
If you fail to timely pay the models for that photoshoot, you’ll also be advertising yourself to a lot of plaintiff lawyers
Obviously, these are just general suggestions. Consulting with a lawyer is strongly advisable for your particular situation. Whether you consult with a lawyer or not, you’ll want to create an agreement (or agreements) most suitable for your needs and create a working environment that decreases the chances that a court will deem the models to be your employees. Focus on the factors in the employee/independent contractor test and craft an agreement that reflects the control residing elsewhere.
A great photoshoot can lead to a great advertisement. Unfortunately, if you fail to timely pay the models for that photoshoot, you’ll also be advertising yourself to a lot of plaintiff lawyers—and that isn’t the kind of great advertisement that you want. Get familiar with the law and protect yourself.