Help Wanted: Compensation for independent contractors
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DEAR CARRIE: My friend works as an extra in movies and TV shows, and she is nonunion. Sometimes, she and the other extras must remain on a set for as long as 24 hours. Yet they earn just $100 for that time. That is far less than minimum wage. But my friend maintains that since they are considered independent contractors, the movie companies don't have to follow labor laws. Is this true? -- Scripted Violations?
DEAR SCRIPTED: She's right, if she truly is an independent contractor. That's because independent contractors aren't covered by labor laws. So minimum-wage and overtime regulations don't apply to them. Even if she is misclassified and is actually an employee, she might fall into the "creative professional" category, which would make her exempt from overtime and minimum wage as long as she is paid at least $455 a week, regardless of how many hours she works. Lastly, if she's an employee but doesn't fall into that category, chances are she would have to be paid for all the hours she works. And she would have to earn at least $7.25 an hour, the minium wage, and overtime when she works more than 40 hours a week.
The U.S. Supreme Court has ruled that a number of factors are significant in determining whether someone is an independent contractor, said Irv Miljoner, who heads the Long Island office of the U.S. Labor Department. They include: the extent to which the services rendered are an integral part of the contractor's business, the permanency of the relationship and the nature and degree of control by the contractor.
The "creative professional exemption" from minimum wage and overtime hinges on whether the employee's primary duty involves work that requires "invention, imagination, originality or talent in a recognized field of artistic or creative endeavor," states the Labor Department's fact sheet on the topic. "The requirements are generally met by actors, musicians, composers, soloists, etc."
So whether the show goes on legally without minimum wage -- or overtime -- depends on what elements best describe your friend's work relationship and the type of work she does.
DEAR CARRIE: My wife works for a large company. She and her co-workers must clock in and out on their computers every day. In order to clock in, they must first log into a myriad of programs. That takes about 15 to 20 minutes. And they aren't paid for that time. The company had someone observe my wife because none of the managers believed it took so long to clock in. Yet the company has done nothing to cut down on that time or to pay workers for it. Shouldn't they get paid for that time, and if so, what could be done? -- Off the Clock?
DEAR OFF THE CLOCK: If your wife is an hourly worker, or nonexempt, she has to be paid for all the time she works, including the 15 to 20 minutes it takes her to open all those computer programs before she can clock in. Some employees have sued major companies over this issue and won.
Federal regulations are clear about what constitutes work. Here is what the Labor Department says: "The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed work place. Workday, in general, means the period between the time on any particular day when such employee commences his/her principal activity and the time on that day at which he/she ceases such principal activity. . . . "
For more information, call the U.S. Labor Department at 516-338-1890.
For more on the factors defining an independent contractor, go to http://1.usa.gov/10WVYK9
For more on how labor laws define "work," go to http://1.usa.gov/M6EBiy