Standards and Practices

INDUSTRY STANDARDS & PRACTICES

The guidelines presented here are for the purpose of providing predictability and consistency to the production process. While adherence to the guidelines is voluntary, they shall, in the absence of any negotiations which result in alternative guidelines, be presumed to be in effect on productions carried by Oregon industry members. It is the responsibility of the parties involved to come to an agreement prior to the commencement of production concerning unique situations not covered in these guidelines. Any alternative guidelines must not fall below the standards set by state and federal statutes. These guidelines were endorsed in 1991 by OMPA, SOFVA and MOPAN.

It is incumbent upon all parties involved to be aware of the fact that there are federal and state wage and hour statutes that cover situations not directly addressed in these guidelines. Statutes of importance cover the definitions of: minimum hourly wage, minimum weekly wage, rest periods, “work” time and meal periods.

Contents:

Producer & Technician
Producer & Client
Performer & Agency
Children’s Employment Guidelines
Employee or Independent Contractor Laws

Producer & Technician

1. Employer/Employee

It is assumed throughout the body of this section of the guidelines that an employer/employee relationship exists between the producer and the technician. If it is believed that this is not the case, there is appended at the end of this document both state and the federal guidelines to aid in determining whether an employer/employee or an independent subcontractor relationship exists.

2. Rates

Rates are based on a 10-hour day and set by the technician. “Work time,” that part of the day in which the technician may charge for his or her time, shall begin at the call time (or under conditions discussed in section 3) and shall end when the technician has discharged all duties for the day. Minimum call, 5 hours or less of work time, shall be billed at 60% of the day rate. Hourly straight-time rates are determined by dividing the technician’s daily rate by 10. Overtime rates are according to the following schedule:

– Monday-Saturday
10-12 hours @ hourly x 1.5
12-18 hours @ hourly x 2.0
over 18 hours @ hourly x 3.0

– Sunday
1.5 x Monday-Saturday rates

– Holidays
1.5 x Monday-Saturday rates
o New Years Day
o Washington’s Birthday
o Memorial Day
o Independence Day
o Labor Day
o Thanksgiving Day
o day after Thanksgiving
o Christmas

If the workday commences between the hours of 2 p.m. and 12 midnight and extends beyond midnight, or if it commences between 12 midnight and 5 a.m., the technician shall be paid an additional 15% of his or her gross wages.

Those required to work a split shift shall be paid straight hourly time for the period between those shifts; however, only those hours actually spent in production shall be counted toward overtime.

“Prevailing rate” shall be defined as the technician’s applicable daily rate with the addition of any penalties for overtime.

3. Scheduling

Postponement of Confirmed Days. Postponements will not be charged providing the technician is given notice of such postponement at least 12 hours prior to the intended call time and the project is rescheduled within 10 calendar days. If insufficient notice is given or rescheduling does not take place, cancellation policy will apply.

Cancellation of Confirmed Days. Cancellations made less than 48 hours before shoot time will be charged a minimum call for labor and 50% of the day rate for equipment for all confirmed days, not to exceed 10 confirmed days. Additionally, the technician shall be reimbursed for all out-of-pocket expenses.

Weather/Contingency. Work held up due to weather, illness, absence of irreplaceable production members, or other conditions beyond the control of the production company shall be billed as follows:

Minimum call if technician is released for day (or night).
Time spent by the technician who is required to wait for weather/contingency situations to change shall be considered as work time and be billed at full rates.
All direct and out-of-pocket expenses shall be reimbursed.
Equipment held under such conditions shall be billed at full rates.
If work is not resumed at the end of the contingent situation, postponement and/or cancellation conditions apply.

4. Travel time

Travel to and from work in the area within a 25 mile radius of City Hall shall not be considered as work time. Travel outside the 25 mile radius on a day when no production occurs shall be billed at the straight hourly rate set by the contractor, shall begin upon commencement of travel, and shall not constitute less than a minimum call (see Section 1). Travel time outside the 25 mile radius on a day in which production does occur shall be considered as work time. Such work time will commence at the 25 mile point and cease upon re-entering the 25 mile zone. The prevailing rate shall be applicable until the 25 mile zone is re-entered. Personnel required to drive production vehicles, regardless of what that vehicle is or who is the owner, shall have their work day begin at the commencement of travel in said vehicles and end when all duties have been discharged for the day.

5. Distant locations

At a distant location (one outside the 25 mile zone and where the technician is lodged for the night), lodging shall be provided to the technician by the producer. When available, single room accommodations shall be required. The producer shall provide meals or a per diem commensurate with the standard of living in the area.

6. Meals

The first meal break shall commence no sooner than 4 hours and no later than 6 hours from the beginning of the workday. There shall be no less than 4 nor more than 6 hours from the end of the preceding meal break and each subsequent meal break. A meal break shall be no less than 30 minutes, nor more than one hour in length. If the meal break occurs in less than 4 hours, the whole meal period shall be considered as work time. No employee shall be required to work during a meal break. If restaurant facilities are not reasonably available when on location, the producer agrees to provide a well-balanced meal at no charge. The meal period shall not be considered as work time. A grace period of 15 minutes to complete the shot in progress shall be allowed so long as all department heads are notified in advance. If no meal break occurs after this grace period, penalties shall continue to accrue from the point at which the 6 hour period was exceeded. The producer will be assessed a penalty according to the following schedule for each 30 minute period (or fraction thereof) of work exceeding the 6 hours between meals:

– first half hour – $7.50
– second half hour – $10.00
– third & subsequent half hours – $12.50

If more than one meal occurs in a work day, then all additional meals shall be hot meals.

7. Turnaround

There shall be no less than 10 hours between the completion of the work time on one day and the commencement of work time on the next day, for the same project. Commencement of work time in less that 10 hours shall result in a penalty, in addition to the prevailing rate, according to the following schedule:

– 0-5 hrs. – $50/hr
– 5-10 hrs. – $25/hr.

8. Payment

Invoices submitted within 5 (five) working days of completion of technician’s work will be paid within 10 days of invoice. A penalty of 1.5% per month (or maximum allowable by law) will be assessed against all overdue balances. Minimum penalty is $1.00 (notice must be printed on invoice for this to apply). A cash draw is requested for technician’s out-of-pocket expenses within 24 hours of expenditure. Because of the variety of accounting procedures, alternative arrangements may frequently be negotiated. It is strongly recommended that an agreement be reached prior to the commencement of production.

Producer & Client

1. Billing

50-50 Plan. (The following is based on the National Association of Independent Commercial Producers Guidelines.)

a. First billing: 50 percent of the contract price. The first invoice will be billed by the production company within 10 days of job confirmation. Since job confirmation has almost always been a verbal order, this first billing will be issued whether or not the production company is in receipt of a written contract, purchase order or letter of agreement. (Note: This provision reaffirms the verbal order to commence production and signifies that all proper agency and client authorizations have been attained and the production company is to begin spending time and money on the job).

b. The remaining 50 percent will be billed upon approval of film or tape dailies (this applies only when contract does not include editorial completion), or upon approval of final edit.

1/3-1/3-1/3 Plan

a. The first 1/3 will be billed by the production company upon verbal confirmation to proceed.
b. The second 1/3 will be billed upon completion of principal photography.
c. The final 1/3 will be billed upon approval of final edited program (this would be the cut work print in film, the off-line edit in tape or the final assembly in multi-image production)

2. Payment

First payment is due and payable within 10 days of receipt of invoice. All subsequent payments will be due and payable within 30 days of receipt of subsequent invoices. A penalty of 1.5% per month (or maximum allowable by law) will be assessed against all overdue balances.

3. Scheduling

Postponement of Confirmed Days. Postponements will not be charged providing the project is rescheduled within 10 calendar days. If rescheduling does not take place, cancellation policy will apply. Any out-of-pocket or non-recoupable expenses due to postponement shall be billed in addition to quoted job costs (e.g., equipment rentals, shipping costs, etc.).

Cancellation of Confirmed Days. Cancellations made less than 48 hours before shoot time will be charged all out-of-pocket expenses plus mark-up plus all appropriate in-house expenses incurred by the production company. Cancellations made less than 48 hours before shoot time will be charged all out-of-pocket expenses plus a minimum call for all scheduled crew for all confirmed days, not to exceed 10 confirmed days, 1.5 day rate for equipment, plus all appropriate in-house expenses and mark-up.

Weather/Contingency. Work held up due to weather, illness, absence of irreplaceable production members or other conditions beyond the control of the production company shall be billed as follows:

a. Minimum call if contractor is released for day (or night).
b. Time spent by the contractor who is required to wait for weather/contingency situations to change shall be considered as work time and be billed at full rate.
c. All direct and out-of-pocket expenses shall be reimbursed.
d. Equipment held under such conditions shall be billed at full rates.
e. If work is not resumed at the end of the contingent situation, postponement and/or cancellation conditions apply

4. Bid Forms

The nationally accepted A.I.C.P. bid form should be used in all competitive bidding situations for film and/or videotape.

5. Travel Time

Travel to and from work in the area within a 25 mile radius of City Hall shall not be considered as work time. Travel outside the 25 mile radius on a day when no production occurs shall be billed at the straight hourly rate set by the contractor, shall begin upon commencement of travel, and shall not constitute less than a minimum call (see Section 1). Travel time outside the 25 mile radius on a day in which production does occur shall be considered as work time. Such work time will commence at the 25 mile point and cease upon re-entering the 25 mile zone. The prevailing rate shall be applicable until the 25 mile zone is re-entered. Personnel required to drive production vehicles, regardless of what that vehicle is or who is the owner, shall have their work day begin at the commencement of travel in said vehicles and end when all duties have been discharged for the day.

6. Production Insurance

OMPA recommends that viable production insurance coverage be obtained by both the producer and the client and that the cost be openly discussed and confronted in the bidding of new work. We also recommend that the agency and/or client should share the liability equally with the producer. A waiver of liability should be obtained by the producer if the client is not willing to assume fair responsibility. This insurance can provide coverage on faulty film and/or tape stock, lab failures or damage, equipment failures, loss or damage of exposed original, weather days, etc.

Performer & Agency

The following standards reflect common practices among talent agents and performers in the professional industry. They have been developed based on both California and New York state law and endorsed by a community of Talent Agents, Performers, Producers, and the OMPA.

1. Definition

A Talent Agent works to procure employment for performers.

2. Payment

Professional Talent Agencies shall only be paid when their performers are booked to work. These payments take the form of a commission, and are detailed in a performer’s contract with their Agent. They take the form of a percentage of gross earnings, and only once the work has been performed and paid for by the client.

3. Fees

A Talent Agent may advise performers about opportunities that will better their career. Professional services such as headshots, workshops, lessons, show reels, online casting support sites, etc. may be required by a Talent Agent. However, fees for such services either to the Agent or specific vendors must not be

mandatory in exchange for representation or procurement of employment. A Talent Agency website has certain maintenance costs that may be passed on to performers in order to be included online, however website fees must not be required in exchange for representation or procurement of employment.

4. Casting

It is considered standard that a Talent Agency does not direct casting in their usual course of operations.

5. Employment Opportunities

Professional performers should never pay for the opportunity to work. In other words, genuine work opportunities come with an offer of fair pay for fair work. Whether solicited by an agency, producer, or anyone else, professional employment does not come with requirements to pay in advance for the opportunity to work.

Children

The following is a brief interpretation of the Oregon Administrative Rules regarding the employment of minors. The Oregon Film and Video Office recommends that the reader contact the Oregon Bureau of Labor and Industries, Wage and Hour Division, for a packet containing complete information. Write to or call the Oregon Bureau of Labor and Industries.

Oregon Labor Commissioner
Bureau of Labor and Industries
WAGE AND HOUR DIVISION
800 NE Oregon #1045
Portland, OR 97232,
971-673-0761
www.boli.state.or.us

DEFINITIONS

Minor: Anyone under the age of 18. Minors under the age of 15 days of age shall not be employed; minors under 1 year of age shall not be employed unless the employer can demonstrate a need for such minor.

Workday: Fixed period of 24 consecutive hours.

Workweek: Fixed and regularly recurring period of seven consecutive workdays.

Long-Term Employment: Employment lasting or contemplated to last more than five working days.

Short-Term Employment: Employment lasting or contemplated to last five working days or less.

GENERAL PERMIT INFORMATION

Five days or more: Employers in the entertainment industry who plan to hire minors for long-term employment must obtain and file an employment certificate form. Minors 14 to 17 no longer need a work permit; minors under 14 need a special under-14 permit. Necessary forms are available at all Bureau of Labor and Industries offices and State Employment Division offices.

Five days or less: In the case where an employer is hiring 10 or more minors for temporary short-term employment, a short-duration permit can be obtained through the Portland office of the Bureau of Labor and Industries.

More than one film a year: In circumstances involving the employment of minors in short-term employment, and when the employer plans to film more than once a year, application may be made for a registration certificate. This registration will be effective through the following June 30 at which time application to renew the certificate should be submitted. Registered employers are then required to notify the Wage and Hour Division no less than 24 hours prior to the employment of minors for short duration.

IT SHOULD BE NOTED THAT AS SOON AS A PRODUCTION COMPANY MAKES THE DECISION TO FILM IN OREGON, AND WISHES TO HIRE MINORS, THE WAGE AND HOUR DIVISION SHOULD BE CONTACTED. NECESSARY PAPERWORK COULD CAUSE DELAYS IF THIS IS NOT TAKEN CARE OF EARLY IN THE PRODUCTION SCHEDULE.

WORKING CONDITIONS

Hours: No employer shall employ minors to work more than the maximum hours listed below or more than six consecutive days. Exceptions may be made if a Special Employment Certificate is applied for by addressing a letter of application to the Portland office. Work (production) hours are defined as hours when a minor is directed by any member of the production company to travel, make-up, wardrobe, rehearse, light, stand-in, etc.

Working Hours for Minors in the Entertainment Industry:

Ages 14-17: 11 hours a day including rest and meal breaks.

Ages 10-13: 10 hours a day including rest and meal breaks.

Ages 6-9: 9 hours a day including rest and meal breaks.

Ages 4-5: 7 hours a day including rest and meal breaks. Up to 8 hours a day if the minor is transported.

Ages 2-3: 6 hours a day including 3 hours of rest and meal breaks.

Ages 1-2: 5 hours a day including 2 1/2 hours of rest and meal breaks.

Ages over 6 months to 1 year: 4 hours a day including 2 hours of rest and meal breaks.

Ages 15 days to 6 months: 2 hours a day, no more than 20 minutes of which shall be spent as work time.

Under 15 days: cannot be employed.

Education: When school is in session and the minor is in first grade or above, an average of 3 hours of instruction shall be provided.

Wages: State minimum wage for minors is the same as that required for adults and will automatically be raised when the adult rate is raised. The present rate is $8.95 per hour.

Safety and Comfort: The work area provided must be sanitary and safe with room for both rest and play. It must have adequate lighting, ventilation, washrooms and toilet facilities. Other safety considerations include worker’s compensation insurance coverage in accordance with laws of the state, transportation available to the nearest medical facility providing emergency services, and on-location return transportation must be provided promptly upon dismissal. The employer must also provide appropriate care and supervision of each minor at all times during the minor’s employment. As a general rule, one supervisor for each nine minors employed is considered adequate.

Meal Periods and Rest Periods: An appropriate meal period consists of not less than 30 minutes; an appropriate rest period means a period of rest of not less than 15 minutes for every 4 hours worked. (See detailed information under Hours.)

Education: The employer must obtain a release from the Superintendent, or designee, of the school district in which the minor’s school is located when the employment requires the minor’s absence from school for more than five days.

The employer must provide minors under 16 years of age with no less than three hours of instruction per day, excluding Saturday and Sunday. The instruction must be provided by a teacher certified to teach in Oregon. Since neither the Wage and Hour Division nor the Bureau of Labor and Industries has authority to certify persons to teach minors, interested persons should contact the Oregon Teacher Standards and Practices Commission, 250 Division St. NE, Salem, OR 97301; (503) 378-3586.

REQUESTS FOR WAIVER OF STATED REGULATIONS SHOULD BE ADDRESSED IN WRITING TO THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, SETTING FORTH THE REASONS FOR THE WAIVER REQUEST.

Employee or Independent Contractor: Federal Law

Under common law rules, every individual who performs services that are subject to the will and control of an employer, as to both what must be done and how it must be done, is an employee. It does not matter that the employer allows the employee discretion and freedom of action, so long as the employer has the legal right to control both the method and the result of the services. An employer must generally withhold income taxes, withhold and pay social security taxes, and pay unemployment taxes on wages paid to an employee. An employer does not generally have to withhold or pay any taxes on payments to independent contractors. The 20 factors listed below have been identified to help indicate whether sufficient control is present to establish an employer/employee relationship. The degree of importance of each factor varies depending on the occupation and the context in which the services are performed.

Instructions. An employee is required to comply with instructions about when, where and how to work. Even if no instructions are given, the control factor is present if the employer has the right to give instructions.
Training. An employee is trained to perform services in a particular manner. Independent contractors ordinarily use their own methods and receive no training from the purchasers of their services.
Integration. An employee’s services are integrated into the business operations because the services are important to the success or continuation of the business. This shows that the employee is subject to direction and control.
Services rendered personally. An employee renders services personally. This shows that the employer is interested in the methods as well as the results.
Hiring assistants. An employee works for an employer that hires, supervises and pays assistants. An independent contractor hires, supervises and pays assistants under a contract that requires him or her to provide materials and labor and to be responsible only for the result.
Continuing relationship. An employee has a continuing relationship with an employer. This indicates that an employer/employee relationship exists. A continuing relationship may exist where work is performed at frequently recurring although irregular intervals.
Set hours of work. An employee has set hours of work established by an employer. An independent contractor is the master of his or her own time.
Full-time work. An employee normally works full time for an employer. An independent contractor can work when and for whom he or she chooses.
Work done on premises. An employee works on the premises of an employer, or works on a route or at a location designated by an employer.
Order or sequence set. An employee must perform services in the order or sequence set by an employer.
Reports. An employee submits reports to an employer. This shows that the employee must account to the employer for his or her actions.
Payments. An employee is paid by the hour, week or month. An independent contractor is paid by the job or on a straight commission.
Expenses. An employee’s business and travel expenses are paid by an employer. This shows that the employee is subject to regulation and control.
Tools and materials. An employee is furnished significant tools, materials and other equipment by an employer.
Investment. An independent contractor has significant investment in the facilities he or she uses in performing services for someone else.
Profit or loss. An independent contractor can make a profit or suffer a loss.
Works for more than one person or firm. An independent contractor gives his or her services to a multiple of unrelated persons or firms at the same time
Offers services to the general public. An independent contractor makes his or her services available to the general public.
Right to fire. An employee can be fired by an employer. An independent contractor cannot be fired so long as he or she produces a result that meets the specification of their contract.
Right to quit. An employee can quit his or her job at anytime without incurring liability. An independent contractor usually agrees to complete a specific job and is responsible for its satisfactory completion, or is legally obligated to make good for failure to complete the job.

Employee or Independent Contractor: State Law

SECTION 1. As used in various provisions of ORS chapters 316, 656, 657 and 701, an individual or business entity that performs labor or services for remuneration shall be considered to perform the labor or services as an “independent contractor” if the standards of this section are met.

1. The individual or business entity providing the labor or services is free from direction and control over the means and manner of providing the labor or services, subject only to the right of the person for whom the labor or services are provided to specify the desired results.

2. The individual or business entity providing labor or services is responsible for obtaining all assumed business registrations or professional occupation licenses required by state law or local government ordinance for the individual or business entity to conduct the business.

3. The individual or business entity providing labor or services furnishes the tools or equipment necessary for performance of the contracted labor or services.

4. The individual or business entity providing labor or services has the authority to hire and fire employees to perform the labor or services.

5. Payment for the labor or services is made upon completion of the performance of specific portions of the project or is made on the basis of an annual or periodic retainer.

6. The individual or business entity providing labor or services is registered under ORS chapter 701, if the individual or business entity provides labor or services for which such registration is required.

7. Federal and state income tax returns in the name of the business or a business Schedule C or Farm Schedule F as part of the personal income tax return were filed for the previous year if the individual or business entity performed labor or services as an independent contractor in the previous year.

8. The individual or business entity represents to the public that the labor or services are to be provided by an independently established business. An individual or business entity is considered to be engaged in an independently established business when four or more of the following circumstances exist:

a. The labor or services are primarily carried out at a location that is separate from the residence of an individual who performs the labor or services, or are primarily carried out in a specific portion of the residence, which portion is set aside as the location of the business.

b. Commercial advertising or business cards as is customary in operating similar businesses are purchased for the business, or the individual or business entity has a trade association membership.

c. Telephone listing and service are used for the business that is separate from the personal residence listing and service used by an individual who performs the labor or services.

d. Labor or services are performed only pursuant to written contracts.

e. Labor or services are performed for two or more different persons within a period of one year.

f. The individual or business entity assumes financial responsibility for defective workmanship or for service not provided as evidenced by the ownership of performance bonds, warranties, errors and omissions insurance or liability insurance relating to the labor or services to be provided.