UNDERSTANDING OREGON 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 situations not covered in these guidelines. It is also the responsibility of the parties to ensure state and federal law is being followed. These guidelines were endorsed in 1991 by the Oregon Media Production Association (OMPA).
Producer and Technician
It is assumed throughout the body of this section that an employer/employee relationship exists between the producer and the technician. If it is believed that this is not the case, see “Employee vs. Independent Contractor Guidelines” further down this page.
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 should be calculated by the following:
- Monday-Saturday: 10-12 hours is hourly rate x 1.5; 12-18 hours is hourly rate x 2.0; over 18 hours is hourly rate x 3.0;
- Sunday and Holidays: Monday-Saturday rate x 1.5. Holidays are: New Years Day, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Day after Thanksgiving and Christmas.
If the workday commences between the hours of 2pm and midnight and extends beyond midnight, or if it commences between midnight and 5am, 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” are defined as the technician’s applicable daily rate with the addition of any penalties for overtime.
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 shall be considered as work time by technician, if required to wait for weather/contingency situations to change 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 & Rest Periods
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 more than one meal occurs in a work day, then all additional meals shall be hot meals.
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 is $7.50; second half hour is $10.00; third & subsequent half hours are $12.50.
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 hours is $50 per hour; 5–10 hours is $25 per hour
Invoices submitted within 5 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 and Client
50–50 Plan. The following is based on the National Association of Independent Commercial Producers Guidelines.
- First billing: 50% of the contract price 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).
- The remaining 50% 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
- 1/3 will be billed by the production company upon verbal confirmation to proceed.
- 1/3 will be billed upon completion of principal photography.
- 1/3 will be billed upon approval of final edited program (this would be the cut work print in film, the offline edit in tape or the final assembly in multi-image production).
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.
Postponement of Confirmed Days. Postponements will not be charged providing the project is rescheduled within 10 calendar days. If not rescheduled, 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 markup.
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 contractor is released for day (or night).
- Time spent waiting for weather/contingency situations to change will 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 will be billed at full rates.
- If work is not resumed at the end of the contingent situation, postponement and/or cancellation conditions apply.
4. Bid Forms
The nationally accepted AICP bid form should be used in all competitive bid situations.
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 and Talent Agent
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.
A Talent Agent works to procure employment for performers.
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.
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.
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’S EMPLOYMENT GUIDELINES
The following is a brief interpretation of the Oregon Administrative Rules regarding the employment of minors. The Oregon Media Production Association recommends contacting the Oregon Bureau of Labor and Industries (BOLI), Wage and Hour Division, for a packet containing complete information. Write to or call the Oregon Bureau of Labor and Industries office.
Bureau of Labor and Industries (BOLI)
Wage and Hour Division
Contact: Val Hoyle, Oregon Labor Commissioner
firstname.lastname@example.org | www.boli.state.or.us
Minor: Anyone under the age of 18. Minors under the age of 15 days (babies/newborns) shall not be employed.
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. Entertainment industry employers who plan to hire minors (14 to 17 years of age) 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 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. All registration certificates expire on June 30th, 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.
No employer shall employ minors to work more than the maximum hours listed below or more than six consecutive days, including days when the minor attends school. Exceptions may be made if a special hours variance is applied for by addressing a letter of application to the Portland BOLI office.
2. Working (Production) Hours
Ages 14–17: 11 hours/day including rest and meal breaks.
Ages 10–13: 10 hours/day including rest and meal breaks.
Ages 6–9: 9 hours/day including rest and meal breaks.
Ages 4–5: 7 hours/day including rest and meal breaks. Up to 8 hours/day if the minor is transported.
Ages 2–3: 6 hours/day including 3 hours of rest and meal breaks.
Ages 1–2: 5 hours/day including 21⁄2 hours of rest and meal breaks.
6 mo-1 year: 4 hours/day including 2 hours of rest and meal breaks.
15 days-6 mo: 2 hours/day, no more than 20 mins of which shall be spent as work time.
<15 days: Cannot be employed.
State minimum wage for minors is the same as that required for adults and will automatically be raised when the adult rate is raised. Effective through June 30, 2019 the standard rate is $10.75, and $12 in the Portland Metro area. The Oregon Legislature established a series of annual minimum wage rate increases that run through June, 2022. Beginning July 1, 2023, the minimum wage rate will increase based on the inflation as measured by the Consumer Price Index (CPI). Please see the boli website for more info, www.boli.state.or.us.
4. 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
5. Meal Periods and Rest Periods
Except where otherwise indicated in state regulations, 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. Minors must be given a meal period beginning no later than 5 hours and one minute after call time.
When school is in session and the minor is in first grade or above, an average of 3 hours of instruction must be provided. 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. 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, (503) 378-3586.
EMPLOYEE VS INDEPENDENT CONTRACTOR GUIDELINES
Under common law, 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.
Under common law, 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
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.
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.
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.
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.
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.
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, works on a route or at a location the employer designates.
Order or Sequence Set
An employee must perform services in the order or sequence set by an employer.
An employee submits reports to an employer. This shows that the employee must account to the employer for his or her actions.
An employee is paid by the hour, week or month. An independent contractor is paid by the job or on a straight commission.
An employee’s business and travel expenses are paid by an employer. This shows the employee is subject to regulation and control.
Tools and Materials
An employee is furnished significant tools, materials and other equipment by an employer. An independent contractor has significant investment in the facilities he or she uses in performing services for someone
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 their contract specifications.
Right to Quit
An employee can quit his or her job at anytime without incurring liability. An independent contractor 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.
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.
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.
Licenses and Permits
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.
Tools and Materials
The individual or business entity providing labor or services furnishes the tools or equipment necessary for performance of the contracted labor or services.
The individual or business entity providing labor or services has the authority to hire and fire employees to perform the labor or services.
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.
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.
Federal and state income tax returns in the name of the business or a Schedule C 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.
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:
- 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.
- 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.
- 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.
- Labor or services are performed only pursuant to written contracts
- Labor or services are performed for two or more different persons within a period of one year.
- 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.