Click here to access the full recently-enacted California Photo Shoot Pay rules
PRINT MODELS
HIRING A PRINT MODEL
For many years, the advertising industry has been accustomed to paying print models by accounts payable (A/P) invoices, usually issued by modeling agencies. Although this practice continues in the marketplace, it is not compliant with federal labour law or labor law in some states such as New York, and we have been seeing a trend in recent years amongst advertisers to pay models as employees to comply with applicable labor law.
Two key classification issues apply to payroll for print Models:
Employee or Independent Contractor: The firs is their status as an Employee as opposed to an IC, which means that payroll taxes are applicable and therefore the models cannot be paid via A/P invoice.
Non-Exempt or Exempt: The second is their status as Non-Exempt which means that their fee must be structured based on an hourly rate to that the total hours the models work in a day or over several days can be paid in accordance with applicable hourly wage and OT requirements.
Models as employees
Models are considered Employees under IRS guidelines. The IRS has several ‘tests’ to determine whether a worker is an Employee or an Independent Contractor. Some of the key IRS ‘test's’ that pertain to models are:
They are told where and when to report for work
Their work is directed and controlled by the employer company
They are paid for their work and expenses, so there is no risk to them of their costs for doing the work exceeding the amount they are paid. They have no risk of ‘loss’ for the work they do.
Classification as an Employee in this context means:
Any compensation paid is subject to employer payroll taxes.
The employer must provide Worker’s Compensation coverage
Models do not qualify as independent contractors and cannot be paid via A/P invoice.
Please note than given the short-term nature of their employment, this designation does not have any implications regarding company staffing or benefits. Models may be hired on a casual, temporary, or short-term basis, without incurring any obligation with respect to company benefits. Consistent employment of the same models could trigger obligations for Earned Sick Leave benefits in some localities.
AGENCY COMMISSION - NON-UNION/UNION
Under some circumstances, for Non-union work, Agency Commission may be paid directly to the Modeling Agency based on an Accounts Payable invoice.
For modeling work under a SAG-AFTRA talent contract, agency commission is considered part of compensation and is subject to payroll taxes and union benefits contributors.
MODELS AS NON-EXEMPT WORKERS
According to the FLSA (Fair labor Standards Act). Exempt workers are persons ‘…employed as bona fide executives, administrative, professional and outside sales employees… and certain computer employees’
Models do no qualify for the exemption from the FLSA requirements, as they meet neither the duties nor salary tests and are therefore considered ‘Non-Exempt’ workers
An established hourly rate that is equal to or greater than the applicable minimum hourly rate-federal or state, whichever has better pay conditions - must be stablished for compensation paid to models.
Models must be paid for actual hours worked including OT
PAYING PRINT MODELS
California Photo Shoot Pay Easement Act
The new law provides an exemption for print production from this otherwise strict provision of the California Labor Code. It brings print production in line with motion picture production (which includes moving-image commercials), which has long been exempt from the same-day provision of the Labor Code. Models and crew on any "still image shoot, including film or digital photography, for use in print, digital or internet media" are now exempt from the same-day requirement, and print producers may now pay these employees in accordance with regular pay practices.
Payroll Requirements
However, even though print production employers in California are now released from the requirement to pay final wages at the time of discharge, they should still be mindful of California's other particular payroll requirements.