HERE’S WHY MOST PHOTO ASSISTANTS ARE NOT SUBCONTRACTORS
A recent California court ruling has once again made it clear the employment status of those that are part of the gig economy, and it applies to photo assistants too.
After 23+ years in the commercial photography business, I have gone through a lot of photo assistants. There’s the kind of assistant that show up just for the donuts (and eat most of them), the ones who need the free lunch to survive, the art school student who dreams of the possibilities, the lifer, the undecided wanna-be, and the motivated up-and-coming photographer. There’s definitely been some good and memorable assistants that form lasting relationships (and they know who they are), and some assistants that don’t need to be contacted again after working with them even once. One thing I always make sure to tell every assistant I hire, is to have a business license as a photographer, and make sure to have other work besides just me.
There’s always been a question in the commercial photography world about the status of assistants: subcontractors, or employees? Many states, such as California, are very meticulous about how they define that status, even if us sole proprietors are not. Since many photographers don’t think of themselves as companies, nor spend their time reading the Tax Franchise Board website, photographers can easily make mistakes about this status, and end up with the state or the Internal Revenue Service deciding the question for them.
The California Supreme Court recently settled the answer in a case first brought way back in 2005. Dynamex Operations West, a delivery company, was hiring workers to delivers documents for them as subcontractors, even though they worked on a constant basis, and did not have business licenses nor their own companies. The court decided there was no reasonable way to say that the workers performed the service for anyone else outside of Dynamex. That means these workers were employees, not subcontractors. But Dynamex was not treating them as employees, with the rights and protections that employees would be given.
This potentially will have a huge impact on the “gig economy” in California, for jobs like driving for Uber, or delivering for Google Express. And yes, also potentially for photographer’s assistants. To be a proper subcontractor, the worker must have their own specialty and be free from my business’ daily control. A business license, other clients they provide service to (for assisting or photography), and even their own business plan and direction are also good signs of a subcontractor.
Here’s an example: say my studio has an electrical issue with my new massive 4800w/s strobes pulling more amps than my outlets can provide. So I call up an electrician, and have him come over to run a new line from the subpanel to walls on the shooting floor. Since the electrician has a specialty that he provides to multiple clients within a day/week/month, a business license and shop location, and maybe even employees of their own, the electrician would be a subcontractor of mine, not an employee. An employee would be a studio assistant that assists only for me most of the week and month, cannot verify any specific assisting specialty, and has no clear plan for their own business. Even hiring an assistant as an intern could bring the same questions by taxing authorities.
Why does this matter to commercial photographers? Since we run pretty fast and loose with our photography businesses, and may not have any desire for an employee, we may still be liable for withholding taxes, offering workers comp, and complying with all the regulations that define employment (mandatory break times, etc). You’d want to have them get a business license or registration before they start working with you (if they don’t already), which will also prove that they’re serious about working in this field. Require them to have other regular clients so that you are not the only one providing them income. A business plan, marketing plan, or actively working on their overall career outside your studio are all good things. Have a conversation with the photo assistant about maintaining their own business insurance, to cover their potential boo-boos, and your ass.
Next time a starving assistant eats too many client donuts and goes to urgent care for an upset stomach, if they can verify they are their own business entity, you the photographer will probably not be liable for associated medical bills, and potentially more. Consult your CPA to guide you on the details. All of this can help avoid substantial costs and responsibilities we photographers never desired. And, it just might ensure your assistants are better informed about the business as a whole, so they can choose whether they are serious to be part of the industry. Or not.