Wage and Hour Regulations?

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digitalskylight

Active member
Hi there,

Not sure if this is the right section heading, but I thought I would post here since it still deals with the industry.

I've been asked to work as a contract DP on an indie feature being shot this summer. The contract they sent wants six, twelve-hour days a week for two weeks on deferred pay.

How do Wage and Hour laws apply to something like this? My understanding was that anything over 40 hours in a work week (as well as over eight hours each day) is considered overtime. Are contracted jobs any different? I put myself out for shooting weddings that can be upwards of 12 hours, but I would imagine an indie feature production under an LLC should be subject to W+H regulations.
 
I imagine the state you're in would impact your question a great deal. And if its you're an independent contractor I'm pretty sure the only thing that matters is the total amount, not the number of hours and days). The rules that determine if you're an independent contractor or employee are set by the IRS. Since its deferred you realize you're working for free, and stand a good chance of never being paid at all, right?
 
Snazzy Flapper said:
I imagine the state you're in would impact your question a great deal. And if its you're an independent contractor I'm pretty sure the only thing that matters is the total amount, not the number of hours and days). The rules that determine if you're an independent contractor or employee are set by the IRS. Since its deferred you realize you're working for free, and stand a good chance of never being paid at all, right?
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Haha yes, absolutely. They're paying a quarter of it up front, but I know there's a high chance of not receiving the other 75% because there are other criteria that needs to be met first (repaying the investors, for example...).

Thanks very much for the help!
 
I don't know how it is elsewhere, but in LA if you're not willing to work that kind of schedule then you're probably never going to work on an indie production. 12+ hour days are the norm, especially on low budget sets, and 6 day work weeks are very common as well. The way I understand it if you're an independent contractor you don't get the same protections as employees. If you belong to the local 600 then things are different (like you won't find yourself on deferred or low budget sets), but that's another beast entirely.
 
The specific laws vary and a lawyer would be required to walk you through all of it appropriately, I've only taken a few law classes and worked in the industry for a while. There is one thing I can say for sure: this is a completely legal agreement, but you are not required to agree if it really bothers you that much. You'll have to get used to it if you plan to work on these sorts of jobs, which you aren't doing for the money.

As far as wage laws, those do apply for hourly jobs. For a PA, for example, the rate given to the worker is calculated from the lower rate given to the IRS. The twelve hour day is actually eight regular and and four time and a half, making a total of 16 hours by regular wage. That's just factored in with the twelve hours and everything over continues overtime. I've gone over payroll sheets enough times to tell you that as a fact. Not all workers are hourly. Some are day rates, some are weekly rates, some are entire job rates, all of which define expected commitment in the contract. If you're getting paid deferred than you are getting equity, which makes you (in a legal sense) an investor. So you don't really get any sort of legal protection. Not that you would need it since they seem to be pretty up front on what to expect.
 
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stefancolson said:
I don't know how it is elsewhere, but in LA if you're not willing to work that kind of schedule then you're probably never going to work on an indie production. 12+ hour days are the norm, especially on low budget sets, and 6 day work weeks are very common as well. The way I understand it if you're an independent contractor you don't get the same protections as employees. If you belong to the local 600 then things are different (like you won't find yourself on deferred or low budget sets), but that's another beast entirely.
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The hours aren't what bother me - it's deferred payment and how the number of posts I've read elsewhere have said you should expect to see very little of that money in the end. I also want to make sure I'm not getting screwed out of overtime pay, since they stated in the contract that overtime would not be covered (forgot to mention this before).
 
Cassius said:
The specific laws vary and a lawyer would be required to walk you through all of it appropriately, I've only taken a few law classes and worked in the industry for a while. There is one thing I can say for sure: this is a completely legal agreement, but you are not required to agree if it really bothers you that much. You'll have to get used to it if you plan to work on these sorts of jobs, which you aren't doing for the money.

As far as wage laws, those do apply for hourly jobs. For a PA, for example, the rate given to the worker is calculated from the lower rate given to the IRS. The twelve hour day is actually eight regular and and four time and a half, making a total of 16 hours by regular wage. That's just factored in with the twelve hours and everything over continues overtime. I've gone over payroll sheets enough times to tell you that as a fact. Not all workers are hourly. Some are day rates, some are weekly rates, some are entire job rates, all of which define expected commitment in the contract. If you're getting paid deferred than you are getting equity, which makes you (in a legal sense) an investor. So you don't really get any sort of legal protection. Not that you would need it since they seem to be pretty up front on what to expect.
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Thanks for the help, Cassius! I'm assuming that DPs and other higher-ups that can't be so easily replaced aren't considered hourly employees, correct? Under contract, couldn't productions even bypass the hourly wage law for PAs by declaring they'll be paid based upon a day or week rate?
 
digitalskylight said:
The hours aren't what bother me - it's deferred payment and how the number of posts I've read elsewhere have said you should expect to see very little of that money in the end. I also want to make sure I'm not getting screwed out of overtime pay, since they stated in the contract that overtime would not be covered (forgot to mention this before).
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I would expect to see zero on the backend of a deferred project. Not because people are out to screw you, but because most films never recoup the initial investment (particularly films made by producers without the money to pay a crew). See it as a learning experience and creative outlet, not a payday. Deferred stuff is a great way to build your chops and make connections, but don't rely on that check!

digitalskylight said:
I'm assuming that DPs and other higher-ups that can't be so easily replaced aren't considered hourly employees, correct? Under contract, couldn't productions even bypass the hourly wage law for PAs by declaring they'll be paid based upon a day or week rate?
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FWIW, I've always been paid a project or weekly rate as a DP, and typically a day rate as an operator, AC, or PA. I've never been paid hourly, and I don't think I've ever been offered or heard of an hourly job on a narrative project.
 
Deffered Pay.

I think there is an attidude to approching such jobs

It is this, you wont get the payment; you are going on the film for experience/reel/contacts whatever and the production might contribute to your costs if you are lucky

But in the 1/1000000 chance that the film goes big then you will get payback rather than feel exploited

On that basis I dont see why the deffered contract should be lo budget too - in fact by contributing your time to the venture, with minimal guaranteed payback, you are in fact becoming an investor in the project - investing your time - and investment should reap reards if the gamble pays off - a higher fee than if they had paid upfront, not a measily fee based around hours

So say you would charge 4k for the week straight, then charge 10k deffered with 'expenses' seperate and actually get the expenses

If I were doing deffered I would actually want a %,

A % is much more valuable in the unlikely event that you do make the next Blair Witch or Clerks

But you probably wont and therefore wont be getting any of the deffered bit..

Also there is a very important aspect of respect - you need to be respected and appreciated for your kindness in investing in their project, you dont want to be treated like someone who has been hired unless you have actually been hired..

Its the difference between a loan and venture captital, when you make a loan with a guarentee of getting it back you charge a low amount, when you fund a start up, you are unlikely to see a return, but if you do you would expect it to be large..

IMO

S
 
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^
An excellent post Sam, I couldn't agree more.

When I do 'deferred' pay work, I simply treat it as an investment in the production itself and stipulate a percentage of any profits the project (most likely) will never make.

I think deferred 'wages' are a waste of time, time is money, and the 'money' you contribute to a project should be treated just like any other monetary investment.

If you're not getting paid, at least own a percentage of the project.
 
Thank you

Now there is one difference between 'investing' and somehow being a 'owner' / partner in the project, in that your owner/partner would actually be liable for a % of any losses (and legal liabilities) - thats the next step up, probably one to be avoided

But if it is understood that the owner/partners are riding the liabilities it then makes one empathise with the size of their investment, which should help manage ones expectations on negotiating the size of ones % for chipping in a few days at no risk beyond the time..

S
 
Another even more complex concept is some kind of bond - very unlikely to happen

For example I did a little project, and the director/editor promised to have a go at my tightening my reel in exchange- Im still waiting

I should have done a pro forma invoice of the nature..

1 day camera operator and kit $1000
or can be exchanged for 1/2 day reel edit to be delivered by 1st april 2012

Its so annoying to be on a project that gets abandoned when the reality of finishing it strikes home
Is also good (and Im usually providing the on set computer muscle) to demand rushes with a right for reel etc

In fact really I rarely do something for nothing (does anyone?), I do it in exchange for some form of intangible, be that credits, footage, steadicam practice, whatever, I am on future project going to clearly lay down that intangible in writing rather than rely on the 'nose'/decency of the other parties to deliver..

For example when schedule falling apart means they bin the steadicam shots, I really didnt get what I was there for

Doing something truly for nothing would generally be for very close family and friends

S
 
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The important thing to establish is where in the repayment schedule you will come. It can be percentage based - so if there is a shortfall, it is scaled to everyone equally - so a 100,000 investment with a 50% recoupment gives 50 grand - your 3000 'investment' still gets 1500 back. If they do it on a preferred status, then if there is money - the initial investors get their back first, then the second, and so on - if you are 523rd on the list .............

If you want to do these jobs - then the let feature is NOT spending your own money, so if they need grip equipment, then do not pay for it yourself, get the production company to arrange the lights, sound hire, production kit. Then you won't actually lose money, just your time. Here in the UK, you can be protected under the minimum wage rule, but if you are self-employed and invoice for your payment, then you lose the protection. However, we do now have a law that allows late payment to have an extra charge added and then interest at above the bank rate. My experience is that it rarely works, but does sometimes stir people on to pay what was originally owed.
 
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