Monday, November 7, 2011
Know The Rules.
This post was a long time coming...
One important thing any freelance (and non-union*) grip, electric, camera person, set dresser, wardrobe, make-up, sound, P.A., etc, etc, should know is how to protect themselves when it comes to employer/employee relations. This is ESPECIALLY important if you're a Best Boy and/or in charge of a department since all the underlings will most likely turn to you when they have problems and questions regarding what's legal, what's not and what's the norm. You're the first line of protection against the dirty, evil, low budget "passion project" producers and what you tell them now is what they'll likely be telling others on the next job they're on. But ultimately, each person is responsible for themselves, because please believe me when I say that nobody knows anything.**
Case in point: everyone I know that started out in the nitty gritty non-union world has, at one point or another, had trouble getting paid. When I first started out in this biz, I was told again and again by various colleagues that employers had up to thirty days to pay, no matter what they may have promised you. Even if they say at the end of the night, "We'll mail out the checks Monday morning," and you don't get one in your mail box until three weeks later, you can't complain because they're still within the thirty days. I have no idea how, where or when this "common knowledge" started circulating, but it's accepted as "fact" by many of us in the non-union world and thus probably spread as so.
But guess what? That's absolute bullshit! Sure, I've had countless Best Boys, Gaffers, fellow grips and juicers all tell me the same thing over the years, but now I challenge any of them to find anything about a thirty day pay grace period rule in California labor law.*** At most they have two weeks. And if they're late, you're entitled to a "waiting time penalty." Aka: Your rate for every day it's late, up to thirty days.
That's a drastically different outcome than the "you'll just have to sit and wait for a month before you're paid" speech most of us have accepted as truth. It was a very rude awakening for me when I found out that what my colleagues and I had believed for so long was so false. It was like if you had avoided some really good food all your life because your parents told you you're allergic to nuts, only to find out that you're actually not. And sadly, that's only one of the many false "truths" out there that most non-unioners have accepted as "fact."
Some other things every non-union freelancer in this biz should know but generally don't?
- Meal penalties. You're entitled to them.
- Minimum wage. You're entitled to that too.
- Overtime? That depends.
Which leads me to...
READ YOUR FUCKING DEAL MEMO and KNOW WHAT THE FUCK YOU'RE SIGNING.
Some of them will say shit like "Employee agrees to work for a rate of $100/day." To them, that means you'll work for that much money no matter how long the "day" is, which sucks big time if they're prone to doing 16-18 hour days. Cross that last part out and write "$100 / 12 hours" (or whatever it is you agreed to before you came to work.) and remember to get a signed copy. Speaking of, negotiate that shit before you show up and for the love of puppies, get it in writing. It could be in a text message (just don't delete it or lose your phone), but I think e-mail is better. I usually send them something along the lines of, "Totally excited about the job! Just wanted to clarify the rate. It's $xxx for 12 hours, right?" And include anything that involves money: gas and/or mileage reimbursement, equipment rental, etc. Having it in writing has saved my ass countless times. Whenever there's a discrepancy, it's always great to be able to show the parties involved exactly what was agreed upon.
And while we're on the topic of wages, know how to calculate them! If you agree to work for $100/12 hours, what's your hourly rate? Hint: it's not $8.33, which is what most people think it is (100 divided by 12). It's $7.14 because the first eight hours of the day is straight time, plus time and a half for every hour after that... And not including lunch because that's technically unpaid. Why is this important? Well, first off, $7.14 is below California minimum wage. Secondly, double that and you'll get your hourly rate for if/when you hit overtime.****
Use this information to your advantage. I'm not saying to throw down a lawsuit every time one of these rules are broken (and we all know they get broken all the time and we let it slide... but that's another post for another time) because let's face it, you'll spend more time filling out claim forms than actually working. But feel free to bring them up at the appropriate time. If Production wants you to work without paying OT, you can bring it to their attention that you had already "overlooked" the fact that they didn't give you a meal penalty. If they want you to drive out to a middle of nowhere location without paying you anything for gas, feel free to bring up the fact that you agreed to accept a rate that's under minimum wage. Just knowing that you have some rights and protections will make you feel more empowered and less likely to be bullied (too much) by a production.
And on that note, Production might throw a few punches of their own, like...
- "Those rights don't apply to you because you signed a 1099 and therefore aren't an employee." Again, call bullshit. You can fill out as many 1099 forms as they'd like you to. But guess what? That doesn't make you an Independent Contractor. The Labor Commission doesn't care if you signed one or not. What matters is whether or not you fall into the category of one, and the tricky part about that is that there's no set guidelines. But just like Production can argue that you are one, you can just as easily argue that you aren't. (Does Production provide you with the equipment? Yes. Are you allowed to take breaks whenever you want? No. Is your work performed under supervision? Yes. Hm... That kinda sounds like you're an employee to me...)
- "This isn't a union show. Meal penalties and overtime doesn't apply to us." Wrong again. I always find this argument ironic since the Department of Labor has all these laws about meals, overtime, pay schedule, etc, for pretty much everyone but those who are working under a Union contract.
- "You obviously haven't been in this business very long. This is how we do things." This is a fun one to flip around and throw back at them, because if they're paying their crew late or not feeding them on time, they obviously haven't been doing this for very long. Besides, just because "this is the way we do things in this business" doesn't mean it's legal.
- "Our client hasn't paid us yet for the project so we don't have the money to pay you right now." From the Labor Commision: "Inability to pay is not a defense to the failure to timely pay wages."
- "This is a small town and people talk. I can make it so you'll never work in this town again." They all pull this card when they've got nothing left and are grasping at air. But just think about it for a second. Most of the time, you're hired by a Best Boy, Gaffer, Key Grip, DP or some other department head. Not a Producer. Do you think your bosses are going to listen to a snot nosed "Producer" who tried to screw you over? No. And if the Producer is a somebody, I guarantee you that they're not going to waste time broadcasting to their entire contact list that they're breaking all kinds of laws. And if they're stupid enough to do that, there are very few Producers who'll scrutinize every name on the call sheet of their next shoot anyway, just to blackball some "nobody" they've never met.
Again, I'm not saying to file a claim against every Production you don't like, but know your rights. And most of all, follow your instincts. I've let a majority of these violations slide in my time because I felt like the connections being made and experience was worth the sucky-ness and I was okay with that. Or I saw that Production was really trying hard to do right by the crew. Or the infringement was so slight that it wasn't worth my time to pursue it. Or I was really there as a favor to a friend more than anything else. Or I was just really tired. Or holy shit, who cares if they want to sneak an extra half hour of overtime from us when they're paying me 3x my normal rate? Whatever the reason, I didn't feel the need to "rock the boat."
But there have been once or twice where I walk onto a job and I know it's going to be hell. I know they're never going to call me for a job again and/or I wouldn't come back even if they doubled my rate. The kind where they're so unprofessional about everything that you know you're going to have a problem getting paid before lunch is even called (if it's called at all). In those extreme cases, I start to collect paper. I make sure I have a copy of my deal memo. A copy of the call sheet. A copy of my (signed by all parties) time card. A copy of any schedule they may have. Anything. Everything. And I make sure to still do my job as professionally as possible. That way, if/when my check doesn't come, I have everything I need to file a claim against them, prove my case, and serve them a nice slice of legal whoop ass.
The bottom line is that there's a lot of misinformation out there about what Production is allowed to do to us and interestingly enough, a lot of that misinformation is geared towards us below-the-liners getting the short end of the stick. I've learned these lessons the hard way, and this is just the tip of the iceberg. But I know that in this harsh reality that is freelancing in the non-union world, no one's looking out for me but myself, so I better damn well know the rules and play the game smart. And not only do I now know how to protect myself better, but this information empowers me to protect the crew working below me as well. After all, no one likes working under someone who lets Production push them around.
So now you know, and knowing is half the battle.
* If you're in a Union, your Union rep would be the one you'd turn to for all this.
** Myself included. I could be totally wrong in this post. In all my posts. YMMV. Blah blah blah. Disclaimer. Blah blah. Quote me at your own risk. Do your own damn research.
*** If you're working in another state, this stuff may not apply to you. But the "do your own research" lesson still stands.
**** Check with Production first. I've had some luck on a show or two where they accepted the first method when determining my hourly rate, which meant 1) they probably weren't trying to nickel and dime me and 2) I get a better deal in overtime.