L&D and withholding wages

[Daniel Madsen]

A show that I worked on is withholding my last weeks paycheck because of the

amount of equipment lost and damaged during the production. The L&D isn’t one person’s fault, but the best boy electric and I are being held responsible implicitly through the withholding of wages. My contract does say that I am responsible for the equipment, but it’s very general and is no way different than the deal memos signed by other people on the crew. It certainly doesn’t say you are responsible for paying for what you broke.

 

The thing is, no crewmember would ever work on a film again if they knew the cost of L&D would be subtracted from their paycheck. My question is, is the production in anyway justified in withholding payment?

 

We were working off a five ton with eight G&E peeps of varying skill levels.

 

In addition, because the producers think they are on solid ground legally, they consider Grip Nation’s blog and video slander….

 

http://gripnation.blogspot.com/

 

Any legal insights appreciated.

 

Best,

 

Dan

[Adrian Sierkowski]

Depending on the amount of the final check I would highly recommend consulting with a Lawyer. However, L&D should be covered by their insurance policy.

[Jamie Metzger]

Depending on the insurance policy, covering L&D can cost the insuree up to $5k for the deductible. If there were $4k is damage...what would a producer do? We didn't hear the story about what got damaged and why though...

[Jamie Metzger]

Daniel Madsen: Your video on your gripnation website is completely slanderous and without justification. You haven't mentioned anything about the situation. If you were to take these producers to court, you would have a hard time considering you are now slandering them publicly without proof. I would take that video down immediately.

 

How do we know you are wrong or right?

[Adrian Sierkowski]

Quite true. Still, though I could see withholding wages due to negligence... but I personally haven't heard of such a thing.

[Mark Bonnington]

If you want legal advise, your best bet would be to talk to a lawyer.

 

If you want my opinion, not to be taken as legal advise... I'd recommend that you let it all slide. If your contract says you're responsible for the equipment, it gives them a pretty good position in court. You could argue that they should split the cost between more of the crew if everyone signed the same thing, but that's a shot in the dark.

 

Consider chalking it up as a costly experience - in the future never sign anything that says you're responsible for the equipment. Or at least have it in writing that your total financial responsibility for equipment loss/damage is capped at a fixed price (something low enough you can take the hit without worrying about it).

Edited September 12, 2009 by Mark Bonnington

[Andrew Rawson]

Was it a union job? If so, get them involved...they love handling situations like this.

[Mike Williamson]

You need to talk to a lawyer. I've never heard of anyone being held personally responsible for L&D on a film I've worked on, my guess is that if you pursue it, they'll have to prove that you were negligent in order to withhold any money from you. But I'm not a lawyer and, to reiterate, I think you need one.

[Daniel Madsen]

hi everyone,

 

the contract did read that I was responsible for the equipment. However, the contracts were exactly the same for everyone in the G&E department, but only my and my co worker's checks were withheld on the ground that we did the check in/check out. I told the producers- for the same reason the other people were paid, I should be paid too. they didn't buy that.

 

Dan

[Alfeo Dixon]

As a working professional, we are held to a responsibility of keeping up and taking care of the equipment that we are required to work with to accomplish the job. I think it is reasonable enough to say IF you are held accountable to the equipment, that you should be able to choose WHOM is going to be allowed to work with that gear that you as a best boy and key are indebted to, i.e. choosing your crew members and knowing that YOU can trust that they return every piece of equipment going off the truck.

 

Lets face it, with the pace of filmmaking today, producers are cutting rates, shooting schedules reduced from 20 day/4 weeks to 18 day/3 weeks and pushing the crews to the limits. If they then go and decide to hire your crew for you and give you guys that are not up to par or just plain cheaper, than I think that accountability they expect from you should be loosened. Plain and simple, "You can't expect me to micro manage a crew I don't know and hope I can trust them and bring this job in on time."

 

Yes in the run of things stuff gets tossed aside and put in strange places, that's when you tell your crew to slow down and do it right. Not just will things get lost and locations ends up with a small G&E package to start his own ENG van, but safety also comes into play. Sloppy work = unsafe working conditions.

 

This is a post about an incident that happened to me and the way I handled it. http://www.steadicamforum.com/index.php?showtopic=8994

[Michele Peterson]

It would help if you told us how your contract was worded. Does it say you are financially responsible for loss and damage? Does it was you are responsible in whole or in part?

 

Someone from the production should have signed a form at the rental house that they are responsible for loss and damage. If you can get a copy of that form, that may aide you if you have to prove that production knew they were financially responsible. Hopefully, you did not sign your name to anything at the rental house if you did the pick-up. Never sign anything like that, even if you think you are a "representative of the company", independent contractors are not representatives legally. Always have forms faxed over to production to sign and have production put the credit card down. Never spot or cover them. If production rented the gear in their company's name, it will help you legally, because it shows they controlled the equipment, you were just the employee and it is the employer's responsibility to train employees properly on equipment. If you were contracted as an Independent contractor, this will not be as clear, however if you have to go to court, your IC status probably won't hold up. Film crews rarely meet the qualifications of an IC. I've won that fight in court before.

 

Call the state labor board first and find out if this is legal. I serious doubt it is. It's like trying to with hold wages of an employee you thought did not do a good enough job, the law still requires you to pay them for the time they put in before being fired. Then seriously consider consulting an attorney. Some attorney's will give you a consult for free to tell you if you have a case or not.

[Mike Williamson]

To add one more thought, another great reason to talk with a lawyer is that many (if not most) contracts in the non-union film world are often illegal in part or in whole. For example, as Michelle points out, very rarely do we fit the legal definition of independent contractors, even though this is generally how production companies draw up their paperwork.

 

The issue Daniel raises is exactly the kind of thing where finding out what the state's labor laws have to say is of primary importance. Even if the production company would like to hold you responsible for L&D and put some kind of language about it in your contract, there are laws in place that dictate whether it's legal to hold employees financially responsible for the upkeep of the company's equipment. If you jam the copier at the office, do you expect the repair bill to come out of your check at the end of the week?

[John David Miller]

I do not believe any employer has the right to garnish wages on labor without a judgement. Doing so is a grievous attack on the livelihood of an employee. Most states have labor laws regarding the amount of time an employer has to pay it's employee. Most deal memos are a joke and will not hold water in court. I strongly suggest you seek the consultation of a reputable labor attorney. I think he will have a field day with these people. I have never ever heard of such nonsense. They have absolutely no right to take money out of your paycheck for ANY reason other than taxes. I am really curious to know what happened with this.

 

I do remember a producer telling me and my guys we would be responsible for the walkie talkies once. He wanted us to all sign them out. We all turned in our radios and I explained that I would just yell on set instead. The producers just smiled and said, "I'm just trying to keep people from being careless with them...of course I can't hold people financially responsible for them."

[Jon Rosenbloom]

First, why would you sign a deal memo that says you're responsible for L&D? I've been a pretty good grip for twenty years, and, guess what, I've lost and destroyed plenty of gear and property in my time. That vintage car on Indy 4? Yup, I put a screw hole right through the roof. Poop happens. You own up to it, make an honest report and the producers eat the cost because it's in their budget and they know it's part of the process. They might not hire you again so fast, but THEY MUST PAY YOU. PAYMENT FOR LABOR IS WAY MORE IMPORTANT THAN ANY SIDE CONDITION IN SOME ONE SIDED, BS DEAL MEMO. I know guys who have snapped the buckets of condors with their rigs; they get paid.

 

In fact, the expectation that the check-in list should equal the check-out is completely unreasonable. Anyone with any experience understands that it is virtually impossible for no L&D to happen on a job. (You acknowledge that in your original post.) So either your producers were extremely naive, or they inserted that clause IN BAD FAITH, knowing they would use it to stiff you at the end of the job. That would invalidate the deal.

 

Do not chalk this up to experience.

Edited May 9, 2012 by Jon Rosenbloom