brandj

AromaKat, lots of artists in NY, LA, Seattle, Chicago etc, who are called freelancers, work project-to-project for different studios in their locations. They may be 3D artists, compositors, colorists, riggers, animators or type designers. The projects they work on may be a few weeks long or a few months, or they may work on several projects back-to-back at the same studio. Often this situation is also called perma-lancing. Many of these "freelancers" are being called independent contractors and made to sign agreements stating as much, even though the conditions of their employment would really suggest otherwise. They don't get taxes taken out, they get paid on 1099s and they are convinced that they don't have any protection from labor laws, being able to get unemployment, organize, etc. So that's what I'm talking about.

I'm not really talking about someone who has a full-time job and does "freelance" gigs on the side in their off-hours (BTW, I call that moonlighting). And I'm not talking about independent artists like me, who sometimes work with other independent artists (offsite) and contract with them for 3D or music composition or sound design, etc. Those situations are often called the same thing - freelancing - as the situation I'm describing, which is really just a series of temporary employment situations. And that may be where the confusion comes from.

The reason I brought up the definitions of Employee vs. Independent Contractor was because Ouef was stating that these folks shouldn't be considered employees, and consequently wouldn't have the "right" to get unemployment. Again, as you point out, it depends on the nature of the relationship, but in the situation I believe Oeuf was talking about - absolutely, they're employees. And I think they should absolutely be able to file for unemployment. 

I think lots of inexperienced and eager artists are just happy to take any job offered them, so they're not picky about the terms offered. Sure they can complain individually, or file forms with the IRS, but that can be a scary thing for artists to do when they more concerned about just getting the next gig. 

 

 

Its not as black and white as that. This freelance thing has gotten way out of hand in the last decade, losing sight of exactly what a freelancer is. What a freelancer is, in the eyes of the IRS, is all this boils down to.

 

Rules are in place to ensure fair practices are met, but  I just went through the verification process myself and can tell you that the IRS themselves will tell you that every business relationship needs to be judged independently for proper classification. I have no clue where all this talk about being on-site automatically classifying people as employees come from.

From here:

http://www.irs.gov/B...ent-Contractor-(Self-Employed)-or-Employee%3F

and here: http://www.irs.gov/B...tractor-Defined

It's pretty obvious that a "freelance" designer who goes into a studio every day at 10AM reports to a producer, takes direction from an Art Director, gets notes on how to revise his work from a Creative Director and is scheduled by the studio would be considered an employee  and as such should be paid on a W2, not a 1099.

Also this:

 "You can also just have them sign something stating that they are independent contractors." is just NOT true. A contract which states a workeris an independent contractor does not automagically nullify the misclassification.

 

So if I work at a place that puts me on payroll instead of taking in invoices and 1099s, does that qualify me for unemployment after a project is up?

Yes.

I have heard that some freelancers have done this in the past (i'm in NYC). This is not legal and led to an IRS crackdown on companies payroll policies. If anyone remembers when NYC started seeing the use of 3rd party payment companies like Yurcor and MBO, that's when the crackdown happened. Many companies were fined and ordered to pay back taxes on improperly labeled freelancers as a direct result from freelancers claiming unemployment between gigs.

Unfortunately, the Independent Contractors and Employee definitions are very vague, leading to these very problems.

Ouef, I have to respond to this. When "freelancers" are working onsite and under the direction of studios they are in fact employees, no matter what kind of contract or deal memo they signed. So what is actually illegal is avoiding paying employer-side payroll taxes, incl. unemployment insurance, etc. and misclassifying the workers. Employers can be fined and are responsible for paying the employee's taxes and liabilities for years after the violation occurs. The Independent Contractor rules are not vague at all. What is happening is just a direct violation of the law.

Whether or not the "freelancers" should file for unemployment after their gig is up isn't for me to judge, although some have suggested that that's exactly what they should do for being forced to work on a 1099. 

More on employment in NY here: http://www.labor.ny....ouapplyfaq.shtm

More on misclassification here: http://www.labor.ny....of-workers.shtm