Animation Guild | We are 839 Digital Magazine
Issue link: http://digital.copcomm.com/i/1021376
FALL 2018 17 D E PA R T M E N T services. On the other hand, because delivery companies do not provide (for example) plumbing services, they will still be able to call an outside plumbing company to come in to fix a broken pipe without becoming the employer of the plumber they hire. And companies that are not in the delivery business will still be able to use independent contractors for their delivery needs. HOW DOES THAT IMPACT YOU? Adoption of the ABC Test means that artists who were previously independent contractors may be reclassified, entitled to all of the benefits of employee status. Under Part B of the test, studios will likely be unable to argue that their artists are performing work outside of the usual course of the studio's business. It is important not to overstate the impact of Dynamex, however. First, it applies only to certain aspects of California employment law (specifically, a set of 18 "Wage Orders" that provide for, among other things, minimum wages and overtime). It does not apply to other aspects of California law at this point, and it is unclear whether or how it might be extended. Moreover, it does not apply to federal law. That means, among other things, that Dynamex does not directly impact the status of loan-out companies for federal tax purposes. For example, numerous TAG members (and in other Guilds) form what are referred to as "loan-out corporations," which are essentially small corporations operated by the member that contracts with the studio. There are federal tax advantages to doing this. The Dynamex decision will mean that members who have loan out corporations will be considered employees but their tax status is unaffected. So they can have "loan-out" corporations and still be considered employees under California law. Next, most artists were likely already legally entitled to employee status under preexisting law. For example, when the hiring studio controlled and supervised the work, the worker was likely already an employee under the previous test (this part of the previous test is now Part "A" of the "ABC Test"). Additionally, Section 3351.5(c) of the California Labor Code provides that anyone working under a contract to create a "work made for hire" shall be deemed an employee. Where artists' contracts contain such provisions, they are therefore employees under that law, even without having to apply the "ABC Test" adopted in Dynamex. The future of the "gig economy" remains unclear. Around the state, there will be new opportunities for workers to step up and claim employee status, while Uber and others are already fighting for legislation that would overrule the "ABC Test" and allow them to continue classifying workers as independent contractors. For the time being at least, Dynamex is a step in the right direction in ensuring that workers are not unfairly stripped of legal protections. (This article is not intended as legal advice, and anyone with questions about their circumstances should seek individualized legal advice.) – Michael D. Four, Esq. of Schwartz, Steinsapir, Dohrmann & Sommers ASK US Doeri Welch Greiner, Director, Feature Animation Recruitment Do you have a work-related question? Please email us at editor@tag839.org. W O R K W I S D O M Q: I JUST FINISHED ON A FILM THAT HAS YET TO BE RELEASED AND I CAN'T PRESENT MY WORK. WHAT SHOULD I DO, ESPECIALLY IF I DON'T HAVE A DEEP PORTFOLIO? CAN I SHOW IT IN PERSON? A: It's a challenge when your last film [or TV show] hasn't released yet and you can't show your latest work on your reel. To avoid making the studio you're interviewing with nervous about your commitment to confidentiality, best practice is to only show material you have permission to share. Ask for producer approval in advance to show in person at an interview only, use on a password-protected reel, or use shots you contributed to in a teaser/trailer. Of course, add your most recent productions to your resume and consider adding a title card to your reel indicating material "Coming soon" from unreleased projects. FALL 2018 17