In recent years, an increasing number of photographers and photo studios have been the subject of a government audit, investigation or lawsuit regarding their use of photo assistants (sometimes also referred to as freelance lighting technicians). While it may be commonplace in the industry for photographers to treat photo assistants as independent contractors and issue 1099 tax forms – generally, that alone is not a sufficient defense. The specific nature of the working relationship will be scrutinized. In general, the NY Department of Labor defines “employment” as “any service or contract of employment for hire, express or implied, written or oral” and “any service by a person for an employer.”
The DOL has issued guidelines on factors that it considers in determining whether a worker (including a photo assistant) is an independent contractor or employee. In general, in order to be considered an independent contractor, the worker should be free from supervision, direction and control in the performance of their duties. Some incidental control over the results will not necessarily dictate an employee-employer relationship. The following factors typically exist if the worker is an contractor: (i) has an established business with a separate employer identification number; (ii) has a business card with their own business or trade name; (iii) has a website for its business and it advertises to the general public; (iv) pays own expenses; (v) assumes risk of a profit or loss; (vi) negotiates a fee (ideally not an hourly rate); (vii) sets own schedule; (viii) offers services to others in the industry including competitors; (ix) can assign work to another individual and the project is person specific; and (x) can refuse an assignment. This is not an exhaustive list but should give you some things to consider. In the photo studio context, the following issues, among others, specifically should be considered:
- How did the photo studio find the photo assistant? Did the client pick the assistant or did the photo studio?
- Does anyone tell the photo assistant how to do the job? Are there instructions on how to set up and take down the lighting?
- How often does a photo studio work with the same photo assistant? A greater frequency and/or continuing relationship are more likely in an employee-employer relationship.
- Who pays the photo assistant? The client or the photo studio and how was the pay negotiated?
- Does the photo assistant bring his or her own equipment to the shoot?
- Where does the shoot take place?
- Who sets the hours of the shoot?
- Does the photo assistant help the photographer in any way other than setting up and dismantling the lighting equipment?
- Does the photo assistant have a business card and a website with a portfolio of representative work.
Many small businesses incorrectly assume that if a photo assistant signs an independent contractor agreement, they are safe from any exposure. That is not true. A signed writing can be helpful but generally it is not dispositive. Even in scenarios where the worker and the company both agree that the relationship was and should be classified as an independent contractor, the Department of Labor and the law may still find otherwise. In the end, a determination will be made based on the specific factual details surrounding the working relationship.
Photographers and photo studios should evaluate their workforce and classification of personnel carefully. If you are the subject of an audit, investigation or lawsuit, contact our office to learn your options and rights. Alternatively, feel free to contact our office if you are a photo assistant and have questions about the nature of your working relationship.
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