Most of my compensation since I started on this journey about 3/4 months ago, have been cash to hand for local transportation or the occasional $100 or $200 for the handful of gigs that offered pay. My out-of-pocket expenses for subscriptions, lessons, seminars and travel to gigs have far exceeded those small payments many times over.
But something came up about 5/6 weeks ago. A well-known retail chain here in NYC wanted me to play Santa. I eventually had to decline the gig due to a conflict with other work, but at the final interview they wanted me to fill out the forms that would have paid me on a W-2 form.
I wanted to work from a 1099, meaning, no deductions and I would be responsible for my own taxes, Social Security, etc.
Working from a 1099 also means that I would be allowed to deduct those professional expenses that the tax code allows. Were I to work from a W2, I would not.
The person who made the offer was quite insistent that I had to be treated as an employee, not an independant contractor, on the grounds that the store determined the hours and location of my work and provided the tools (costume) to be used.
But, by my way of thinking, that's no different from any actor's situation when appearing in a show. And I certainly am not an ongoing employee. I was not to be a sales clerk, product demonstrator or stock manager. I would have been a performer, something they do not normally have on staff.
So, what is the experience of others here on this issue? How solid is my position that as a performer, I am an independant contractor
In my view, you weren't going to be an independent contractor if you had gone with the situation you describe. The store is your employer because they are telling you what to do, where to do it, and what to wear. You'd be an independent contractor if you were coming in to take care of and provide the entire Santa experience yourself, similar to a hired third party vendor - your own costume and methods of what to do and where/how to do it.
One of the main ways (if not the primary way), legally, to distinguish between "employee" and "independent contractor" is the degree to which the employer controls the behavior of the worker and "whether the business has a right to direct and control what work is accomplished and how the work is done, through instructions, training, or other means."
Another difference between the two is, who owns the result or product of the work that you do? As retail store Santa, you would represent the store, and any extra foot traffic or business that your presence/performance would bring would belong to the store.
Also, not being an ongoing employee doesn't make a difference. It's normal for seasonal and temporary employees to get paid via W-2.
Furthermore, being a performer doesn't by itself make you an independent contractor either, and doesn't always mean that you don't get paid via W-2. I know people who end up with a whole stack of W-2's at the end of the year from various acting and stunt jobs on legit tv/film productions.
Oh and all this is even more so since you would, presumably, be anonymous and not allowed to tell your audience/customers your real name. The performance would not be promoting you the actor, just the store.
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