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Considerations for unpaid film crew members in Montana

Film crewmembers have, from time to time, found it difficult to collect their wages after working on movie sets in Montana. This article addresses relevant considerations for crewmembers seeking to recover their unpaid wages.

For a film crewmember to determine what recourse they may have against the studio or production company withholding their wages, the crewmember should first clarify whether they are properly classified as an employee or independent contractor. Simply because a crewmemberâs contract defines the crewmember as an independent contractor does not mean that crewmembers will be found to be independent contractors by Montana courts or relevant administrative agencies.

Montana law provides that "the fact that a contract designates a party as an independent contractor is not dispositive of a workerâs status. A party must have been an independent contractor in fact."

"The right to control constitutes the most crucial factor in distinguishing between employees and independent contractors."[1] Four factors guide the inquiry of whether a right of control exists sufficient to give rise to an employer-employee relationship: (1) direct evidence of right or exercise of control; (2) method of payment; (3) furnishing of equipment; and (4) right to fire.

That is to say, training, supervision, and review of completed job assignments indicate that an employer controls "how" an employee performs his work. Further, payment on a time basis strongly indicates employment status, whereas payment on a completed project indicates independent contractor status. An employment relationship almost invariably exists where the employer furnishes valuable equipment. Finally, the power to fire without incurring contractual liability demonstrates the power of control exercised by an employer of an employee.

For additional consideration, the Administrative Rules of Montana set forth the following guidelines for determining if someone qualifies as an independent contractor:

(1) To be an independent contractor, an individual must be engaged in an independently established trade, occupation, profession, or business. The following factors serve as general guidelines when the department evaluates whether an independently established business exists:

(a) the individual has a place of business separate from the hiring agentâs place of business;

(b) the individual supplies substantially all of the tools, equipment, supplies, or materials necessary to perform the services;

(d) the individual has two or more effective contracts to perform services for several different hiring agents;

(e) the individual is paid based on a billing statement or invoice at completion of the services;

(f) the individual performs the services under a written contract that requires complete or partial payment after a certain amount of work is performed, and the contract terminates after a definite time period;

(g) the individual advertises services in telephone books, newspapers, or other media;

(h) the individual files federal or state business tax forms;

(i) the individual has the required customary licenses, registrations, or permits to maintain a business;

(j) the individual may realize a profit or suffer a loss from performing the services for the hiring agent. This factor may be shown if the individual:

(i) hires or pays assistants to perform the services;

(ii) performs the services at facilities owned or leased by the individual;

(iii) has continuing or recurring liabilities associated with performing the services; or

(iv) agrees to perform specific jobs for prices agreed upon in advance and pays expenses associated with the performance of the services;

(k) the individual has an independent contractor exemption certificate;

(l) the individual may not end the relationship at will without incurring liability. An independent contractor agrees to complete a specific job, is responsible for its completion, and may be subject to liability for failing to complete the job in accordance with agreed upon specification;

(m) the individual is not prohibited or restricted from working for others; or

(n) another factor that indicates the existence of an independently established trade, occupation, profession, or business.

If these factors weigh in favor of a finding that that the crewmember was an employee, and not an independent contractor, the crewmember may consider filing a wage claim with the Montana Department of Labor & Industry (https://erd.dli.mt.gov/labor-standards/wage-and-hour-payment-act/filing-a-wage-claim). If the above factors weigh in favor of the conclusion that the crewmember was indeed an independent contractor, the contractor may then need to proceed directly with filing a claim in court.

Establishing that the unpaid wages were owed to an employee, and not an independent contractor, is preferrable from the crewmemberâs perspective considering that statutory penalties may be imposed against the employer, as follows:

An employer who fails to pay an employee as provided in this part or who violates any other provision of this part is guilty of a misdemeanor. A penalty must also be assessed against and paid by the employer to the employee in an amount not to exceed 110% of the wages due and unpaid.

M.C.A. § 39-3-206.

For additional information concerning recovery of unpaid wages, you may reach Jean Meyer by telephone at (406) 219-8422 or by e-mail at jean@meyershumrick.com