Sooner or later, most of us photographers find ourselves in need of an extra set of hands or feet for a particular project, whether it’s a second shooter (no JFK jokes, please) at a wedding, managing gear and lighting on a commercial shoot, or stabilizing the flower balanced on top of a rocking horse sitting inside an adorable bathtub for that oh-so-cute newborn shoot. Most new photographers and sole proprietors, myself included on numerous occasions in the past, think nothing of pulling in a friend or relative to help out in their time of need. And while that may be fine for personal projects, having that modus operandi in your business can get you into some hot water. I’m not talking about how nice it is to have someone to share the work or how cool it is to refer to someone as “my assistant” (which, admittedly, is pretty awesome…until they break something); I’m talking about, when you DO pull someone else in to help out, making sure that all legal ramifications are met and you do not sign your business’ death warrant.
Here’s why: your liability. You not only have to consider the possibility that your assistant might damage property or injure someone while performing their duties under your direction. The thing is, the government (at least our glorious bastions of truth and freedom here in the US) sometimes has a tendency to get their proverbial (and, on occasion, their literal) panties in a bunch (stop with the presidential jokes already!). Either situation can come back to bite you in the tookus, and while some of you might be into that type of thing, it’s probably not a practice you want to include in your business operations.
Contractor vs. Employee
A contractor is an independent business entity who typically provides their own equipment, carries their own liability coverage, is responsible for paying self-employment taxes, etc. While the IRS has a more exhaustive list for determining the difference between a contractor and employee, their general rule of thumb is, “… anyone who performs services for you is your employee if you can control what will be done and how it will be done.” Certain professions, such as lawyers, general building contractors, and others who regularly offer their services to the public are automatically classified as contractors, but the IRS has no specific category for “person holding light stand.” Therefore, inaccurately classifying someone as a contractor could land you in trouble should the IRS come knocking, resulting in excessive paperwork and having to pay retroactive employment taxes.
Another issue to consider is your liability as a business owner and photographer. This is where you want to check with your insurance provider to see whether they cover subcontractors under your policy or not. (If you don’t already have liability coverage for your business, don’t feel bad…just get it. ASAP. It’s worth the peace of mind, is often required by law/clients/venues, and legitimizes you as a business…but, that’s an article for another time.) While you may be able to find an insurer who offers a policy that covers subcontractors, most do not and will only cover employees on payroll. So, if something goes awry, and your assistant burns the client’s house/business/1,000-year-old Chinese Elm to the ground, it’s gonna be YOU crawling under the Oval Office desk. (Okay, that joke was on me.) Who’s going to pay for it?…you?…your insurance provider?…your assistant?
Again, don’t feel bad if you don’t have all of your proverbial ducks in a row. (Your OCD bathtub practices are your own business…) I’m all about confessions (just don’t ask about that one time at band camp), and the reality is that, not until recently, did I have everything in place to protect myself, my clients, and my assistants in the event of disaster. As a small business owner, I know how intimidating and embarrassing taking certain steps can be, especially if you’ve been operating without them for any period of time. But, it’s really not that scary when you get down to it.
Hiring an assistant as an employee (vs. a subcontractor) serves multiple purposes:
- They will have the necessary general liability coverage (through you) in the event that catastrophe strikes or you blow stuff up (which, depending on your outlook, doesn’t necessarily fall under the “catastrophe” umbrella).
- In the event that your assistant is injured while working for you, they will be covered under your workers compensation policy (discussed below), providing another layer of liability protection and saving a possible lawsuit.
- It ensures that you are completely legal and won’t have an ass-biting incident down the road.
- It can save you hassle and head-aches down the road. If an assistant suddenly quits or has an emergency, you can grab anyone you want while enjoying the benefits listed above.
Get General Liability Insurance
As mentioned above, if you don’t already have this, get it. This not only covers you as an individual but, more than likely, will extend to cover any payroll employees you hire, whether it’s for a single day or full time. If I’m only hiring the occasional assistant who doesn’t already function as an independent contractor with the necessary coverages (not to mention the potential issue with the IRS’ stipulations) , I didn’t feel like it was fair to require that they purchase their own liability policy, and purchasing a separate policy for each assistant I might hire over the next year wasn’t a financially feasible option at all. Therefore, it was actually cheaper for me to set up payroll and start hiring assistants as employees.
In the end, the cost for liability insurance is not prohibitive. I pay less than $500 a year for a $1 million ($2 million aggregate) coverage policy through Erie Insurance (recommended to me by another photographer). If you don’t have the cash to pay the policy in full up front, check with your insurance agent to see if quarterly or monthly payment options are available. More than likely they are, and this allows you to spread out your cost of operations over a period of time.
You Will Need a Workers Comp Policy
The legal requirements for this can vary from state to state, but the general consensus is that, if you hire an employee, whether full time or just once for a 2-hour gig, they must be covered by workers compensation. Here is a detailed state-by-state comparison of those requirements.
You can shop around for a quote or, like I did for ease, simply get one through the same insurer who holds your liability policy. For the estimated payroll amount I gave, my policy comes to $499 for a year. The policy cost is based off your total expected wages for the policy term (12 months). Since you are just starting down this road, you won’t have previous years to go on and will have to estimate your payroll for the coming year. If you over- or under-estimate, that’s generally fine since the insurer will conduct an audit at the end of the term based off actual payroll and adjust accordingly, providing a partial refund or billing you the balance, if necessary.
Consult with a Pro
I would definitely recommend at least talking with an accountant going into things. For the longest time, I had been reluctant to for fear of appearing ignorant, looking like a lousy business professional for not already having an understanding of all financial angles, or the associated costs/consulting fees that might be involved. But, truth is, that’s what they are there for in the same way that you function in your business to fulfill a particular need/service. Don’t feel like a heel…do you stay away from the doctor simply because you’re embarrassed for not being able to diagnose your medical problems on Google? (I sure hope not…dear, Lord…)
I know that finances are tight for the small business owner, especially if you haven’t hit “the big time.” (However, you probably won’t ever get to “the big time” if you don’t take certain steps along the way. Unfortunately, that’s just part of the process.) But, I was pleasantly surprised to discover that the fees for an accounting firm aren’t unbearable at all. I sat down with a local accounting firm to establish and outsource my payroll through them, and 30 minutes later I was a fully legal employer! After the initial setup fee (a mere $100), it costs me $80 a quarter for my accountant to file my payroll taxes and $20 a year to prepare employee W-2s and reconcile payroll. So, for $340 a year (and $5 per payroll run, which is worth the time-cost trade-off in itself), I have a hands-free approach to my payroll and simply cut a check to them for salary, taxes, and their services each time I pay an employee!
So, don’t be afraid of the unknown…just ask!
If you choose to DIY…
A great resource for small business professionals in the US is The Small Business Administration which offers a comprehensive step-by-step guide to take you through the process of hiring your first employee and make sure you have all the proper paperwork filled out.
As one photographer so eloquently put it, “Get legal, or get out!” While blunt and hard for me to swallow at the time, keeping things above-board not only protects you, it protects your clients, it protects those you work with, it legitimizes your business, and it adds an extra sense of, “Wow, I’m really doing this!”