Recently there has been some flurry in the press about a law firm in California which is advertising that they will will assist models and actors in enforcing penalties in law for failure to pay at the conclusion of their jobs. Briefly, the issue is this: California law defines actors and models as employees; employees are required to be paid immediately upon discharge; when the employer fails to make payment immediately, they are liable for a penalty of up to 30 days at the employee’s pay rate, or the number of days until final payment is made, whichever is less.
That could make for a very substantial bonus. If, for example, a model was paid $1,500 for a day (not at all unusual for commercial modeling jobs), and the employer did not pay her for 30 days, he is liable to pay her an additional $45,000 in penalties.
The law is widely ignored. It is common for modeling clients to pay on a delayed schedule, and to treat models as “independent contractors”, so that they are not liable for withholding taxes and payment of unemployment compensation insurance. Employers generally are unaware that models are explicitly defined as “employees” for labor law purposes in some states such as California and New York, and that they fall within the definition of employees in many other states. Even a contract with the model stating that she is an “independent contractor” is generally not sufficient to change the presumption in law that they are “employees”.
Although as reported it sounds like an issue restricted to California, in fact it points to a much broader set of issues that apply in most of the United States. A total of 46 of the 50 states have statutes on the books requiring expeditious payment of discharged employees; of these, six require payment within 24 hours of discharge. Most states do not have statutory penalties for failure to pay within the required time, but some do. Missouri seems to be the most stringent; an employer can be liable for up to 60 days pay for late payment.
Nevada law on the issue closely mirrors that of California. Although there is no explicit designation of models and actors as “employees”, the relevant section of Nevada law states “as used in this section, “independent contractor” means a self-employed person who agrees with a client to do work for the client, for a certain fee, according to the means or methods of the self-employed person and not subject to the supervision or control of the client except as to the result of the work.” Very few models can work using their own means and methods, without being under the supervision or control of a client, director or photographer. Although there does not appear to be Nevada case law on the subject, other states have ruled that models are “employees”.
Nevada also has the same provisions for payment and penalties:
1. If an employer fails to pay:
(a) Within 3 days after the wages or compensation of a discharged employee becomes due; or
(b) On the day the wages or compensation is due to an employee who resigns or quits,
the wages or compensation of the employee continues at the same rate from the day the employee resigned, quit or was discharged until paid or for 30 days, whichever is less.
It does not appear that any law firm is currently making an attempt to enforce these provisions of law outside of California, but models, actors, clients and photographers would be well served to understand what the laws of their states are regarding treatment of models as employees, and requirements for payment after the job is over.