Author Archives: Gordon Firemark

New California Ruling changes test for Independent Contractors

Are you classifying the people who work for you properly? I work with lots of entrepreneurs and small business owners, and I'm struck by how often people assume that just calling someone an independent contractor is enough to make that the case.

It's especially common with small independent films and theatre projects. Producers often include provisions in their contracts stating that the work is being performed by an independent contractor, who agrees to take responsibility for all taxes, workers' compensation, and other obligations.

But wishing it, or even contracting it won't make it so.

In 2012, shortly after California legislated some harsh penalties for misclassification of workers, I wrote about the so-called “Control test” which examines the degree of control the employer has over the worker in a number of areas.

Independent Contractor vs. Employee – misclassification can cost entertainment industry employers dearly.

New Supreme Court Ruling

But earlier this week, that changed. On April 30, 2018, California Supreme Court rendered its decision in Dynamex Operations West, Inc. v. Superior Court, and clarified the standard for determining whether workers should be classified as employees or independent contractors. The Court held that there is a presumption in favor of treating workers as employees, and that an independent contractor classification places a burden on the company to establish that it is proper under the so-called “ABC test”, which has been adopted in some other jurisdictions.

The ABC Test

Continue Reading

Contracts must prohibit sexual harassment in the entertainment workplace.

It's a tragedy that the headline of this story even needed to be written.  But it did.  Desperately.

By now, we've all heard about the truly despicable behavior of some hollywood heavyweights. Men in power abusing that power to take advantage of, demean and humiliate women.

And we're learning just how persuasive this kind of thing has been throughout the entertainment industry.  Thanks to the courage and tenacity of a handful of prominent women in the business, the dirty little (big?) secret is out in the open.  And now, brave women everywhere are now standing up to be counted with a rallying cry of “#metoo”.

Now, I can't say I'm shocked at the fact that this kind of thing was going on.  The so-called “casting couch” has been a part of Hollywood folklore since the earliest days of the movie business.  (and the theatre, vaudeville, etc.)  What IS shocking to me is just how pervasive  this offensive abuse of power has been, even in the modern era.  I had no idea that it was still  happening to so many women, so often.

My heart hurts just thinking about it.

I was raised to respect women.  Respect, appreciate, support, encourage, empower, embolden them.  Yes.  Demean, abuse, assault, intimidate, coerce?  Hell no.

It's time for everyone in this business, men and women alike, to take steps to prevent this kind of thing from continuing.  Speaking out and denouncing the conduct is a good step, but actions speak louder than words. So, here's my call to action to all my clients, fellow lawyers, and to the entire community:

Every deal, every transaction, every business activity must,  from this day forward , confront the issue of sexual harassment head-on and include a provision declaring sexual harassment unacceptable, a breach of contract, and grounds for immediate termination.  

And,  we should go further, requiring of all our personnel, that they report any suspected sexual harassment they witness, on pain of termination.   Like this:

“Sexual harassment will not be tolerated and  is grounds for immediate dismissal.  If you are a victim or witness to suspected sexual harassment you should report it to the Producer immediately for investigation and corrective action.”​

​Such provisions have been common in below-the-line deals, crew deal memos, and the like, but they've largely been absent from the deals with Producers, Directors,  Designers, and Performers.  And those are the people with, and thus most able to misuse power.

Contracts used to include a so-called “Morals Clause”, which (theoretically )protected the studios and their business by allowing termination when they were subjected to scorn or negative perception as a result of employee's public acts, appearance, or behavior.  But these provisions have largely fallen out of favor over the past few decades for various reasons.  And, to my knowledge, these clauses were rarely invoked in cases involving sexual (mis)conduct. (at least where heterosexual conduct was involved).

But sexual harassment IS immoral, and it needs to have consequences.

So, it's time for a change.

We need to address this as a community.   Yes, talking about harassment is uncomfortable.  It should be.  We need to talk about this issue until it's no longer an issue.

“We need to talk about this issue until it's no longer an issue.”

All of our contracts need to explicitlyy say that harassment will get you fired.  No matter who you are.

If you're an employer, you need to implement a policy, and back it up by requiring adherence in all contracts.  And then, you need to actually enforce the policy.  Every time.  No exceptions, no retaliation against whistleblowers.

If you're an employee, you should expect a work environment that's free from harassment.  Not just harassment when you're a victim, but harassment of anyone, at any time.  That means it's incumbent upon each of us to stand up and say something, whenever we suspect harassment.

And finally, if you're a perpetrator of sexual harassment, STOP.    We won't look the other way ever again.

That's not the way we roll around here.  Not anymore.

Episode 89 – you’re a mean one, Dr. Seuss

Episode 89 – you’re a mean one, Dr. Seuss

Show notes are located at The Latest episode of my Entertainment Law podcast, Entertainment Law Update, is now available for your enjoyment. Listen here, or subscribe and download in your favorite podcast listening app. Here’s what we talked about.. 1 SCREEN ACTORS GUILD URGES JUDGE TO SAVE AGE-CENSORSHIP LAW TO COMBAT RAMPANT BIAS 2… Continue Reading

Register your DMCA Agent by December 31 or risk losing your “safe-harbor” protection against copyright infringement lawsuits.

Earlier this year, the copyright office finalized the plan to modernize the process for registering your DMCA Agent.  Registration offers important protections for all operators of online service providers.  This includes you if you have a website, blog, podcast or other online presence.  Operators of sites with a registered DMCA Agent can benefit from a “safe… Continue Reading

The Equifax Breach, and what you should do to protect your credit

While this post is not, strictly speaking, on the “Entertainment Law” beat,  several clients asked me about it, and I addressed their concerns in my e-newsletter (sign up in the sidebar).  On recommendation from a friend, I’m reposting it here as a service to readers. DISCLAIMER: I’m not a data-security expert, and the above should… Continue Reading

There is no custom code to display.

Find us on Google+