APA California Activism Committee Update: Payment of Talent Agency-represented Talent
For the last year and a half, Muse Law Group has filed a number of lawsuits against photographers, and advertising agencies, for labor code violations against both agency-represented models, and freelance models. The lawsuits claim the hired talent was an employee of the defendant, was fired at the end of the shoot, and ought to have been paid in full at the end of the shoot. Most of the models were paid within a net 30 day pay period, a standard industry practice, which Muse Law Group claims is a violation of California Labor Code 203 (a).
What you should do
With what we know now, the clearest way to avoid a lawsuit like this in the future, is to pay your talent, in full, at the end of the shoot.
As always, it’s prudent to be aware of the laws and regulations that govern your business activities; this situation is somewhat opaque, but let me try to shed a little light on it.
What has happened in the last 18 months
A number of claims have been settled out of court, and a few decisions have been made by the Labor Commission, in favor of the plaintiff. Decisions by the Labor Commissioner are typical in these types of cases – at this lowest level of judicial system, state bureaucrats review these cases, and the Labor Commission uses whatever justification they want to come to a decision. There is no deeper consideration of the claims, because there are no arguments from either party. Decisions by the Labor Commission cannot be relied upon by other courts as precedent, and, of course, neither can out-of-court settlements.
Either party can appeal the decision, at which point, the case moves to the next level: California Superior Court. Here, both parties can argue their case to a judge. If either party remains dissatisfied with the decision by the Superior Court judge, the case can move to the Court of Appeal, and, eventually, the State Supreme Court. Proceeding through these stages in the legal system can cost a considerable amount of money, and sometimes the cost for legal fees will exceed the claim, but only a decision from the Court of Appeal, or California Supreme Court, can be relied upon by other courts as precedent.
So far, no defendant has taken their case beyond the Labor Commissioner decision. The law firms filing these charges hope for this type of outcome - they want to settle or get a favorable decision from the Labor Commission - because beyond that, a case will become unprofitable. The Labor Commission seems likely to continue to decide in favor of the plaintiffs.
For a permanent resolution to these types of lawsuits, a defendant needs to see a case all the way through the court system, but, of course, there are no guarantees that the final decision, by the judge of the Court of Appeals, will be in favor of the defendant. There are always many unique circumstances to each case, but once a legal decision has been made, it will most likely become precedent. When that happens the outcome for other cases will follow suit.
What this means to APA photographers
I have heard of out-of-state clients avoiding the Los Angeles area, for fear of getting sued. This is a real concern, and one that hits the pocketbooks of photographers, talent agencies, producers and all the other people involved in a shoot. Being aware of this situation can protect you from litigious people, looking for a quick dollar, who have no regard to damage it does to the industry.
Again, the best practice, at the moment, is to pay the talent at the end of their booking.
APA San Francisco Chapter Chair
APA CA Activism Committee Member
August 31, 2012
For more APA background info on this issue please click here.
Contact a reputable, qualified attorney for even more information.
This announcement is provided by APA for informational purposes only.