I’m in complete agreement with you, and was bitching about this when it first went into effect in 2005. It has NOTHING to do with 2257, NOTHING to do with protecting children, and has no place in the law. It was most likely added because somebody wanted to restrict production of porn, and this was a way they could do it without anybody bitching. I think the immigration issue is a smokescreen; NAFTA would cover it.
But… I wouldn’t shoot it. I don’t think payment has any effect
Along with all that has been said here. You should also take into consideration the model.
He could be deported or be barred from entering the US from now on.
If you want to do it so bad. Drive up to Buffalo and cross the border and film in a hotel there.
I actually went to an immigration attorney about 4-5 years ago to try to sort out this very issue.
It doesn’t matter if he gets paid or not, even volunteering is still considered work. If he doesn’t have a Visa or Green Card it is still in violation of immigration law therefore in violation of 2257.
Why is everyone OK with me violating Canada’s labor laws? lol
The whole situation is just absurd… I wish some producer would challenge the law and get it struck down. I can’t see this aspect of it holding up in court, though I have zero interest going bankrupt proving that point.
It’s not an immigration issue, it’s a 2257 identifcation document issue.
2257 says that the performer, if shot in the US, must have an acceptable photo ID, and then elsewhere, it says (paraphrasing) that an acceptable photo ID must be a US government-issued ID, or a foreign-issued ID if the person has a work visa. If the performer is shot outside the US, then the foreign-issued ID is fine.
Yes, it’s technically hiring an illegal worker if there’s no work visa, but I think you’d be in much bigger shit for the 2257 violation than you would be for a one-time payment of a few hundred bucks to somebody who wasn’t a citizen. In other words, immigration is pretty unlikely to come after you, while the moral police enforcing 2257 might.
[QUOTE=gaybucks_chip;44869]It’s not an immigration issue, it’s a 2257 identifcation document issue.
Yes, it’s technically hiring an illegal worker if there’s no work visa, but I think you’d be in much bigger shit for the 2257 violation than you would be for a one-time payment of a few hundred bucks to somebody who wasn’t a citizen. In other words, immigration is pretty unlikely to come after you, while the moral police enforcing 2257 might.[/QUOTE]
But the thing is, I understand the immigration/labor issue. The amounts are small and I think it’s pretty insignificant, but overall it’s a good law.
But saying that an ID of someone who is clearly 30+ is only good if I shoot outside the US is infringing on my rights as a US citizen. It really has no purpose other than curtailing free speech. That law I don’t understand on any grounds.
[QUOTE=gaybucks_chip;44869]It’s not an immigration issue, it’s a 2257 identifcation document issue.
[/QUOTE]
It’s actually both if you think about it. Basically, the 2257 regs are saying that you can film non US residents on US soil as long as you follow immigration laws.
First Ammendment rights. If they’re not being paid I don’t see the issue. Last I knew people can come to the US to do volunteer work - it’s not a violation of immigration laws. The purpose of immigration laws is to protect American workers…
It’s a free speech issue. It bars me from making a documentary of someone who comes to NY on a sex holiday… Before you jump all over the documentary part - that was how Paul Morris (of Treasure Island) labeled himself when he started up - he basically documented barebacking in gay culture.
[QUOTE=rawTOP;44874] The purpose of immigration laws is to protect American workers…
[/QUOTE]
This is not entirely true. The purpose of immigration law is also to protect foreign workers as well.
I think the main thing boils down to immigration law - is it legal for a porn producer to film a non US citizen on US soil without a work permit no matter if paid or not? If it’s not legal, then the 2257 law is basically saying you need to be in compliance with immigration law as well, so you can’t do it because you are breaking immigration law.
But, I do see your point. Ugh! 2257 drives me crazy.
[QUOTE=abostonboy;44876]I think the main thing boils down to immigration law - is it legal for a porn producer to film a non US citizen on US soil without a work permit no matter if paid or not? If it’s not legal, then the 2257 law is basically saying you need to be in compliance with immigration law as well, so you can’t do it because you are breaking immigration law.
But, I do see your point. Ugh! 2257 drives me crazy.[/QUOTE]
Let’s change the scenario… Put someone on Times Square pulling people in to do a market research study that the person gets $100 for participating in. If they got a European tourist in the mix how big of a deal would it be? The Feds wouldn’t think twice - it’s not a violation worthy of any enforcement time, yet the person was paid for work and didn’t have a work permit.
You know I am playing devil’s advocate to try and understand this law.
Scenario #2: Let’s say a McDonald’s has a line out the door. A tourist from Europe goes up to the manager and says I can help you out for an hour or two for free (about the same time it takes to film a shoot.) Would the manager be breaking the law?
I think you really have to look at what relationship exists when you film someone in porn. I don’t believe it’s an independent contractor relationship, but more of an employee relationship.
I think it’s pretty well established that (at least in NY) models are independent contractors - with the exception maybe of people with exclusive contracts. If that weren’t the case then workplace safety laws go into place and condoms (etc) would probably be mandatory. Employers are far more responsible for the safety of employees than contractors.
In some parts of California OSHA passed laws like that. As far as IRS regulations go, a porn actor would not be classified as an independent contractor.
But, even if they are an independent contractor, they still need proper immigration docs.
Says who? Our accountant says an independent contractor is defined by the following:
Employees more often work on-site, contractors more often work off-site.
Employees are usually closely supervised, contractors often have latitude in when and how they get the work done.
Employees usually use the business' tools, contractors often provide their own.
Employees typically work for only one business, sometimes two, and they have regular hours. Contractors work for a variety of businesses.
Project-based work where the work ends at the end of the project is usually a hallmark of contractors. Likewise, routine, on-going tasks are almost always done by employees.
Wages for employees are reported with a W2, wages for contractors are reported using a 1099 (if over $600 for the year).
Clearly porn actors are independent contractors. They work for a variety of places, their work is project based, they have the ability to say 'no' to projects, they often bring their own tools (fetish gear, cockrings, etc.), and their wages are reported on 1099s (more often than not).
[QUOTE=rawTOP;44890]Says who? Our accountant says an independent contractor is defined by the following: [LIST]
Employees more often work on-site, contractors more often work off-site.
Employees are usually closely supervised, contractors often have latitude in when and how they get the work done.
[/QUOTE]
Once again, playing devil’s advocate. But, look at those two. Then add -
No Instructions. Independent contractors are not required to follow, nor are they furnished with, instructions to accomplish a job.
No time clock. Independent contractors set their own work hours.
Location. Independent contractors control where they work. If they work on the premises of the hiring company, it is not under that company’s direction or supervision.
Order of work. Independent contractors determine the order and sequence in which they will perform their work.
in california, says the labor board and the EDD. i know a couple companies who fought it since the model decided on the time, brought his own clothes, decided what he wanted to do in the shoot, etc, but they lost and had to pay a large fine and do a bunch of stuff regarding their models being “hired” for the day as employees.
[quote=rawTOP;44890]Says who? Our accountant says an independent contractor is defined by the following:
Employees more often work on-site, contractors more often work off-site.
Employees are usually closely supervised, contractors often have latitude in when and how they get the work done.
Employees usually use the business' tools, contractors often provide their own.
Employees typically work for only one business, sometimes two, and they have regular hours. Contractors work for a variety of businesses.
Project-based work where the work ends at the end of the project is usually a hallmark of contractors. Likewise, routine, on-going tasks are almost always done by employees.
Wages for employees are reported with a W2, wages for contractors are reported using a 1099 (if over $600 for the year).
Clearly porn actors are independent contractors. They work for a variety of places, their work is project based, they have the ability to say 'no' to projects, they often bring their own tools (fetish gear, cockrings, etc.), and their wages are reported on 1099s (more often than not).[/quote]
In California, they are considered employees. And it has been through the courts many times. I don’t know of any cases where it has been challenged outside of California. (Probably since most porn has been filmed in California.)
But, most porn producers for the most part, even in California, treat their actors as contractors.
Just looking at the IRS regs, I don’t see how an actor could be a contractor. Do you have him show up at your studio and NOT tell him what to do? Once you tell someone how to do their job, they are no longer a contractor.
I’m not in California, and Lloyd was talking about IRS regulations… I think everyone will agree California is a unique situation.
[QUOTE=abostonboy;44894]No Instructions. Independent contractors are not required to follow, nor are they furnished with, instructions to accomplish a job.
No time clock. Independent contractors set their own work hours.
Location. Independent contractors control where they work. If they work on the premises of the hiring company, it is not under that company’s direction or supervision.
Order of work. Independent contractors determine the order and sequence in which they will perform their work.
[/QUOTE]
Any accountant will tell you it’s always a judgment call - many people don’t fit either profile perfectly. The fact that they can turn down work, work when they want to work, and that the work is project oriented, and they work for multiple businesses puts them in the contractor category. When you look at that list of what defines a contractor - it’s the total balance of things. It’s not like one or two items makes you an employee - just the opposite - a few of those things makes you a contractor.
When Elliot Spitzer was NY Attorney General and Governor he really went after businesses for misclassifying employees as contractors. NY clearly only cares about whether payroll tax should be paid or not, and they want clear violations. Trust me, I’ve gotten a notice from them with fines totaling around $30,000 and discussed this at length with my accountant. (The fines were dismissed). So if a number of the stronger factors are in favor of independent contractor - they’ll leave you alone. Someone who works for you a few hours a year definitely isn’t something they’ll pursue. They want the big businesses who have armies of 35-50 hour/week employees classified as contractors. Or even little businesses with a few regular employees who didn’t classify any as employees (which is what they thought we were).
true, yet many other contractors are told how to do each individual job and are still legally considered contractors.
[quote=abostonboy;44897]In California, they are considered employees. And it has been through the courts many times. I don’t know of any cases where it has been challenged outside of California. (Probably since most porn has been filmed in California.)
But, most porn producers for the most part, even in California, treat their actors as contractors.
Just looking at the IRS regs, I don’t see how an actor could be a contractor. Do you have him show up at your studio and NOT tell him what to do? Once you tell someone how to do their job, they are no longer a contractor.[/quote]