Responsibility and Legality when shooting for another company?

[jamie_vascan]

<p>I'll try to make this short. I was shooting weddings as a stand in photographer for another photography business that mentored me and this helped me fill in my schedule and have work when I wasn't booked. Long story Long the owner of the business is in prison for something unrelated to his business/photography as a whole- I had no idea about it until recently and had been shooting for them since June. The wife was running his business for him but is now going into a treatment center for three months. Obviously I am no longer going to shoot weddings for them. I was often times on the contract as the "photographer" and sometimes when they were sick I was not on the contract at all- the owner was. I know that with them being unable to work they will be unable to provide the image "coffee table" books for these clients for at least 3 months. I have edited and provided images to the clients under the supervision of the wife- so the clients do have the images. But I am wondering if I will be held responsible for providing the books legally- I personally cannot afford to make that many books. Is there some sort of document I could create and have the wife sign to release me? Or would the wifes signature not even matter? Would their clients be able to come after me? (I dont have a problem providing them image discs if thats the case- they work on a creative contract not print sales). They will both be able to work again in February as she will be out of the treatment facility and he will be out of prison. I should have covered my butt sooner (I know that now)? I don't think any of them would be motivated to sue me personally as I have good relationship with all of the people I have shot for in their place but I really don't know what to do. I have two weeks until the wife goes into the treatment center.</p>

[roger_dennis]

<p>Hi Jamie,<br>

We need more info to answer your question of liability. Who was paying you on these shoots - the ones where the couple is now owed an album(s)? Were you an employee of the company? Were you a sub-contractor? Who was actually signing your checks, the wedding parties? or the company?<br>

You were on the contract as the "photographer." Was you signature on the contract in these instances or were you merely named in the company contract as the designated photographer?</p>

[jamie_vascan]

<p>Hi Roger- Thanks for your response. I am on about 8 of the contracts as "photographer". The contract states photographer takes images, but then says COMPANY NAME in bold will provide- then goes onto say the books, the dvd of images, etc.<br>

On the shoots the company would break the payments up into three equal payments, the first two payments would go as checks written out to the company the last payment- due on the wedding day would go to me in Cash or Check made out to me. In instances where I was not on the contract- the company paid me in cash for final payment.<br>

I don't believe the company ever documented me as an employee. I always deposited the checks/money in my business checking account and it will be claimed on my taxes as income from my shoots.<br>

It looks as though I was named as designated photographer. When I met with these people at the first meeting, I met with them with the owner of the company and he always refered to me as "one of their photographers". Most of these clients know though (because of them not having good communication with their clients) that I run another photography business and I am stand in when they cannot make it or fill in on dates they were already booked, but have always provided them with excellent customer service because I don't feel they are being treated right in all this. I have been pretty honest and upfront with the clients but not bad mouthing the other company- I have let them know it is unfortunate circumstances and where I kind of fit into all that.</p>

[bobcossar]

<p>Jamie.....with all the best intentions.....you<strong> really need to put this before a lawer</strong> familiar with the law in your location.....all the very best to you.....Robert</p>

[roger_dennis]

<p>"Don't shoot me, I'm just the photographer," sounds like an appropriate witticism.<br>

Your not being a signatory to the contract should protect you. Were this a tort or negligence case you would be protected by the theory of <em>respondeat superior.</em> <br>

The company is on the hook for delivering photos, books, etc., not you.<br>

The wedding parties could possibly argue differently, having sometimes paid you directly. But honestly, I don't believe they would be successful in that argument. The payment on-site by the bridal party directly to you could get a bit sticky, but you should be okay since you are not a signatory. The fact that you were "sitting at the table" during negotiations could be a little nagging, but probably okay.<br>

Be careful in all oral or written communications with clients of the Company that you stress that you were an employee of the Company at that time. Do not mention words such as partner, colleague, fee splitting. Make it very plain that you were merely being an honest employee of the Company, neither a partner nor an owner.<br>

Also, be very careful to not sign off on anything for them while they are temporarily absent from their business. You probably should consider distancing yourself from their affairs as much as possible while they are gone. You may be great friends with the owners, but do not risk additional liability on your part. Better to let them suffer consequences for what they have brought on themselves, than for you to tangled in their legal affairs.<br>

Trust me, lawsuits, however frivolous and small, are time consuming, and emotionally exhausting. They will completely drain your creativity. You have your own valuable reputation to protect. Spend your time wisely being creative with marketing your own business, rather than taking on their potential legal problems.<br>

If you plan on doing anymore work for the Company in their temporary absence, make sure you get some kind of employment agreement signed that states that you are an employee and are not liable for their previous, current, or future debts. You need something in writing that says that you are an employee and nothing more. <br>

You would be better off to avoid their situation all together.<br>

Just noticed that Robert responded also, listen to him too.<br>

Roger Dennis</p>

[jamie_vascan]

<p>Thank you both. Roger- I don't plan on doing any more work for their business AT ALL, infact they owe me a weeks worth of work pay that I will probably never see since it's not all in writting I know there's nothing I can do about it and it's not worth my time fighting to get it but this gives me a reason to do nothing for them. I really don't want anything else to do with them but know the brides I did shoot for may contact me by email or phone when they don't hear from the company for a few weeks- would my best bet be to ignore it all together or to tell them I was merely only an employee at that time and I no longer work for them? Should I send the company a letter stating I no longer work for them and have no responsibility at all in their affairs? I could have the wife sign it- but don't know if it would hold up in court since it's only the wife and I don't know if she has power of attorney while her husband is in prison.</p>

[john_h.1]

<blockquote>

<p>Were this a tort or negligence case you would be protected by the theory of <em>respondeat superior.</em></p>

</blockquote>

<p>Respondeat Superior is not a protection from liability. When it applies, it <strong>adds</strong> another party to those who can be liable, namely, an employer<em>.</em></p>

<blockquote>

<p>you were merely being an honest employee... ...stress that you were an employee....</p>

</blockquote>

<p>Nothing here indicates that an bona fide employee relationship exists although there is indicia of an agency relationship. Representations made by an agent about their relationship with the master can sometimes bind the master and such a comment could put the agent at risk of liability for wrongly placing the master at risk for liability where there otherwise wouldn't be any. i.e. needlessly creating a respondeat superior situation (coincidentally). This pertains to the negligence situation raised above. In any event, its not a good idea to say, much less "stress", that one is an employee when one is not.</p>

<blockquote>

<p>make sure you get some kind of employment agreement signed that states that you are an employee</p>

</blockquote>

<p>They'll be thrilled at the prospect of being liable for tax withholding and reporting, purchasing workers compensation insurance, unemployment insurance, ect.for their new employee.</p>

<blockquote>

<p>Just noticed that Robert responded also, listen to him too.</p>

</blockquote>

<p>Substitute "instead" in place of "too".</p>

[roger_dennis]

<p>John, technically you are correct about <em>respondeat superior</em>, but my point was that in this case, whatever the legal theory, the liability would roll uphill to the Company.<br>

<em>Indicia of an agency relationship? </em>You must have found that in <em>Corpus Juris</em>. I think "agency relationship" is a quite a stretch in this case. From my 25 years experience in the construction business, and having done most of my own legal work, the relationship sounds more like contract employee / sub-contractor. In either case, yes the Company is responsible to the IRS for at least reporting income, if not withholding; and the Company may be responsible in the case of a job related injury. <em> </em><br>

The entire point to Jamie of being an employee is to stress to any potentially litigious clients that the Company, and not Jamie, is responsible to complete the contract, and for any grievances arising from it.<br>

And guess what, regarding Workers Compensation, in some states if the Contractor/ Employer does not carry Comp, then that liability rolls right on up to the OWNER, or in this case the Bridal Parties - the ones who are paying for, and buying, the "project." It may sound crazy, but you'd better believe it, and check into it in your own state. By the way, this is why contractors and owners demand to see certificates of insurance, or even require that they be named insureds.<br>

I rest my case, Jamie is an EMPLOYEE for purposes of enforcement of this contract and any breach of contract claim, and is off the hook. After all, Jamie is not a signatory to the contracts.<br>

Further, who cares a whit about placing any blame on the Company via <em>respondeat superior,</em> if it is deserved (or in this case were it even applicable.) The Company in this case has shown itself to be slow paying and derelict in delivering purchased goods to its clients. And it is going to be delayed another 3 months in doing so.<br>

And would Jamie be better advised to listen to any of us? or talk to an attorney? Obviously an attorney would be the correct answer, but she asked us first. ;-)<br>

Roger Dennis</p>

 

[steve m smith]

<blockquote>

<p> The contract states photographer takes images, but then says COMPANY NAME in bold will provide</p>

</blockquote>

<p>I think the last bit of that sentence tells you all you need to know.</p>

 

<blockquote>

<p>And would Jamie be better advised to listen to any of us? or talk to an attorney? Obviously an attorney would be the correct answer, but she asked us first.</p>

</blockquote>

<p>No point wasting money like that until someone tries to force you to provide the products/services which 'the company' is obligated to provide. I personally wouldn't bother even then.</p>

[john_h.1]

<blockquote>

<p>you are correct about <em>respondeat superior</em>, but my point was that in this case, whatever the legal theory, the liability would roll uphill to the Company.</p>

</blockquote>

<p>Liability would not "roll" anywhere. It would stay and an employer, if there were one, would be an additional liable party. Moreover, If the company were one, its dismal state of affairs suggests that there would not deep pockets and that a claimant would just as likely seek to collect from the original party if it could. Thirdly, it has little relevance since it involves tortuous conduct which wasn't the issue asked about.</p>

<blockquote>

<p>You must have found that in <em>Corpus Juris</em>.</p>

</blockquote>

<p>I'm not sure why you think the information "must" have come from that particular source since it is widely available elsewhere or why you think it matters. Indeed, it was obtained elsewhere.</p>

<blockquote>

<p>I think "agency relationship" is a quite a stretch in this case.</p>

</blockquote>

<p>This completely contradicts the conclusion that "[t]he company is on the hook" since it wouldn't be unless there were an agency relationship with Jamie acting on behalf of the company instead of for Jamie. The entire post was about showing that there is an agency relationship.</p>

<blockquote>

<p>the relationship sounds more like contract employee / sub-contractor.</p>

</blockquote>

<p>Yet the advice was to "stress" that it wasn't. In any event, it doesn't matter since an independent contractor can also be an agent.</p>

<blockquote>

<p>my 25 years experience in the construction business</p>

</blockquote>

<p>The common practices of subcontracting in the construction business is not very analogous to the situation here.</p>

<blockquote>

<p>who cares a whit about placing any blame on the Company via <em>respondeat superior</em></p>

</blockquote>

<p>Apparently you since you brought that up.<em> </em></p>

<blockquote>

<p>I rest my case, Jamie is an EMPLOYEE</p>

</blockquote>

<p>It would be more convincing had Jamie not also been described as a "sub-contractor" in the very same post.</p>

[john_h.1]

<blockquote>

<p>is an EMPLOYEE for purposes of</p>

</blockquote>

<p>There isn't employee status for some issues and not others. One is either an employee or they are not.</p>

[roger_dennis]

<p>Woah, John, Woah! Take a breath, Sir.</p>

<p>We both seem to be arguing semantics over the employment relationship between The Company and Jamie. And we are in a futile tussle of egos, it seems.</p>

<p>My point, simply stated, would be that Jamie is not liable to The Company's clients for the photo albums, or anything else for that matter. The contracts are between The Company and the clients. Some of the contracts merely state that Jamie is a photographer and will snap the actual photographs, nothing more. That being said, Jamie can quit/resign from The Company at any time and owe nothing further to either The Clients or The Company. In fact, The Company owes her for a week's worth of work.</p>

<p>Jamie owes nothing further to the Clients, beyond shooting photos and delivering them to The Company, which she states that she has done.</p>

<p>Jamie remains "off the hook" and <strong>The Company remains "on the hook"</strong> for all contracted goods and services.</p>

<p>And hey, I'm no longer writing legal memos so I can use informal figures of speech such as "on the hook," and "off the hook," and the colorful "liability will roll right on uphill" instead of the word "accrue." I'm not gettin' paid by the hour here, you know. So there, John. Are we even yet? Do we agree to disagree, or do you want to flog this dead pony some more, Sir? <strong>;-))</strong></p>

<p>Roger Dennis</p>

[john_h.1]

<p>Well Roger, while I disputed the accuracy of and questioned some comments, ego wasn't a motivation. Other than that, you may pleased to know that won't happen with your current helpful observations.</p>

[ted_suss]

<p>Jamie,<br>

Regardless of how the "company" classified you, according to the IRS, wedding photographers are employees. That being said, it's actually the company's responsibility to pay all withholding taxes, unemployment insurance, worker's compensation, etc. You should consult an accountant to file tax returns where income from this company is included to see exaclty what you need to pay.....-TED :-)</p>