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Hello BFC, I'm a freelance photographer/photographer's assistant who has a very sneaking suspicion that his former client will not make good on future invoices. Here's my info. On Wednesday, June 05, I quit working with him and he wrote me a check for an invoice he had in his possession since May 07 (2 days before the due date). On Friday, June 07, I returned a piece of equipment of his, which I was borrowing, and he gave me a check for his business expenses I paid for him out of my own pocket. On Friday, June 07, I deposited both checks into my account. Over the weekend, both checks cleared into my account. Today, Monday, June 10, those checks are now being refunded to his account. I spoke with my bank, both on the phone and in person, and they won't have any information until tomorrow. Well, the only information that they did have was that, yes, those checks are going back to my former client. I contacted my former client asking him if he was aware of what was going on and if those checks had just bounced. He replied, code:code:Now, I've never had any issue with his checks not clearing, and especially not ever having any fund returned to the issuer until now (so I can get all my info together really gives me pause). He has, on a couple occasions, asked me not to make a deposit for a couple days, which I've honored. Given this, I replied, code:code:For further information, when we ceased our working relationship, it was over an "internship" situation for me doing Photoshop for his weddings. I had already been assisting him on photo shoots and doing work in his studio (things which I would invoice him for), and I jumped at the chance to do the editing/retouching for him. We both agreed to do an "internship" rather than paid work to get me going on this. Doing editing/retouching on weddings is a specialized process vs. fashion/architecture/etc., so I needed some training in that regard which I why I accepted those terms: "Do some free work for me while I train you to do it my way and to my standards, and then, whenever I feel like you're ready to get paid, I will pay you a professional rate if it fits into my budget." After a couple months and several weddings being done for him, I was becoming unenthusiastic about the process (he really likes to ask for one thing, I send him the revision, then he's happy with that, then asks me for another thing) and getting an unsettling feeling about the whole "if it fits into my budget" thing for the time and effort putting into the project, I told him that I wouldn't be able to continue doing this type of work for him. He was really upset and really felt burned by me and told me things like, "We had an agreement: you were going to produce work for me at an internship basis, during which I would share with you my knowledge I got at Brooks and from my years of doing this work on my own, and then after you were ready, I would pay you to do the work. If you decided that you didn't like the work after the internship, then that's up to you, but you at least were required to go through that training and instructional process." (Not exactly verbatim, but the important elements are there.) Now, from my point of view, and from some conversations we had at the outset of this "agreement" was that this internship process would be probationary. I believed that should I not be performing up to his standard or according to his requirements, then he would terminate it. Also, since it was probationary, and since there was no written or signed contract about this, I interpreted it as being probationary from my stance as well (i.e., if I didn't like doing it or for some other reason could not continue doing it). From my point of view, the only elements clear about the process was that a) I performed the work for him under his guidance and b) at some undefined point in the future I would get paid for that work without his tutelage. When I brought that to his attention, he basically repeated what he said above, adding, "I have spent my valuable time going over these projects with you and I have shared my valuable knowledge with you through this process and you have yet to fulfill your end of the bargain." I told him that I had also spent my valuable time going through this process and I have brought into it plenty of knowledge which I already possessed. He then said I didn't respect him or his work for bailing on him, told me it would be best not to continue to work together in any fashion, but then said that he promised to pay the remainder of my invoices and that would finalize the severance of our working relationship. So now flash forward to today. Given the nature of his vague responses to my inquiry, I expect that he cancelled his checks or something similar in order to recoup his money. I also expect that he has no further intent to pay the remaining invoices. Should I be prepared to take him to civil court over this? I was really hoping there would be no bad blood over this, that we had decided that not working together was the direction this relationship needed to go, and that this would get cleanly sorted out. I've been dicked over on an invoice here and there, but not over a month's worth of work, wear and tear on my vehicle, and expenses I paid for his business out of my own pocket. However, people say, "He's a really good guy," and I have yet to hear from him until tomorrow, so maybe there isn't anything sinister afoot. What do you all think? tl;dr I recently terminated a working relationship with a client, he was upset over my supposedly violating an agreement of which the details were not clear to me, his checks which I deposited before the weekend are now today being returned to him. I suspect that he doesn't have intent to pay me for those or for the remainder which are yet to be due. Subjunctivitis fucked around with this message at 23:02 on Jun 14, 2013 |
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Jun 11, 2013 01:34
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I have had a similar experience, although it never involved money at all. I'll highlight what I got out of mine if it might help. I did unpaid "intern" work for a lawyer. It was advertised as a paralegal position, but it didn't involve helping with legal research at all. It was more like pure admin assistance, answering the phone for him and other basic office tasks. Also, it involved no real training besides having to go up to him every single time because he didn't want to teach anything directly. Now, this particular person was "nice" half the time and got on everyone's rear end over the smallest things the other half, and did this to me from day two. So after a week of that I went from giving him five hours per day to two hours per day. Eventually I was doing almost nothing but following leads for his house rentals so I was giving him directly economically beneficial labor for free, as I see it. I at least wanted to learn more about drafting motions but he assumed it was so easy that I could do it an hour before court on my second time doing it, without any training. So of course after I couldn't do it, he just put me back on the phones for the most part. However, under no circumstances would I have taken poo poo such as, "I feel burnt by you, I'm giving you valuable knowledge and now you want to cut your hours!" He at least didn't do that, but if he wasn't flexible about my working for free, that would have been the absolute breaking point. It was lovely in many other ways but I won't go into more details. From this standpoint, I agree completely that you gave this photographer your own valuable knowledge and effort. The extra problem in this case is that there's money involved. It depends on how much you want to let this burn because the photographer could be a potential reference. Going by unpaid intern law standards, if you were giving any economically valuable labor at all, he should have been paying you. Thus the oral agreement to be unpaid was under-the-table and I would guess it wouldn't be a very strong defense in court. I put up with my own situation by cutting my hours, though, just to get some experience.
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Jun 11, 2013 02:24
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SecurityManKillJoy posted:I did unpaid "intern" work for a lawyer. It was advertised as a paralegal position, but it didn't involve helping with legal research at all. It was more like pure admin assistance, answering the phone for him and other basic office tasks. Also, it involved no real training besides having to go up to him every single time because he didn't want to teach anything directly. I really hate the way internships work, sorry it was a meaningless experience for you. SecurityManKillJoy posted:However, under no circumstances would I have taken poo poo such as, "I feel burnt by you, I'm giving you valuable knowledge and now you want to cut your hours!" He at least didn't do that, but if he wasn't flexible about my working for free, that would have been the absolute breaking point. It was lovely in many other ways but I won't go into more details. "Going by unpaid intern law standards" Hahaha, I appreciate that. As far as him not being a potential reference, he was so upset and mad about the whole thing, there's not a chance of that there. I'm still not sure if he's deciding to be petty and not pay my future invoices, even to go so far as to withdraw checks he's already made out to me, but our exchange today with all his vagueness make me feel as if he doesn't intend to pay me. There could be something else at large and potentially out of his control, which is why I mentioned the rare occasions where I wouldn't deposit his checks immediately. The two parts to our working relationship were: 1) Paid Assistant (on shoots, maintaining his studio space, misc. work on an hourly basis) 2) Unpaid Photo Editor/Retoucher Intern And he might be withholding payment for 1) because he's mad about 2). I feel like if I need to got to small claims, I have more rights and more evidence on my end to demand payment. This also goes as far as witnesses who have been present when I have been doing the work for those invoices. I feel like he would have way more to lose by not paying me, such as his "valuable" time to gather his own evidence, attending court, and more importantly, his professional reputation. So right now, I am not positive on what's going on, but I'm curious to know how others feel about this situation so far. I can answer any questions about our working relationship at this point, but I can't update the progress until "after 6 tomorrow."
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Jun 11, 2013 04:18
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Subjunctivitis posted:
He put a check in your hands; that's an indicator that he acknowledges a debt to you. I think you stand a very good chance at recovering the amount of those checks in court. Additionally, internships are pretty clearly defined. If he was making money off of your work, then you were not an intern, you were an employee. And it sounds like he is treating you like a contractor. Having recently gone through being hired on as employee #2 at a startup, I've learned that the distinction between contractor and employee has pretty important ramifications with the IRS. If you really wanted to be a dick, you could contact the IRS and let them know that you think you were misclassified as a contractor and he could have to pay backed payroll taxes and whatnot. In reality, the IRS threat is more of a way of twisting his arm into making the situation right without having to involve the legal system.
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Jun 11, 2013 07:27
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oRenj9 posted:He put a check in your hands; that's an indicator that he acknowledges a debt to you. I think you stand a very good chance at recovering the amount of those checks in court. Yeah, I also have proof of checks from prior invoices for services rendered at their respective rates. I feel like I also have reason to claim that my future invoices should be paid. Per oral contract law, (from some cursory Google research), together we reviewed the remaining invoices (due July 1) in front of his computer as well as when we had a phone discussion where he told me, "and don't worry, I'll pay the rest of your invoices; you don't have to lose any sleep over that," or similar, but I distinctly remember him telling me I wouldn't have to lose any sleep over the possibility of unpaid invoices. I've also done a bit of research and find that any possible claims he may make about me violating an oral agreement for my post-production work to be specious at best. His best argument would be in regards to an oral agreement for work to be done. However, the nature of our verbal agreement hinges upon the fact that he viewed (views) our agreement to do his post-production work for him as an exchange of knowledge for work done. The latter part of that (the work done) is where I feel like I have the upper-hand: 2. The internship experience is for the benefit of the intern. 4. The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded. I don't feel like the experience was for my benefit. I understand it to be for the future benefit of the employer (client), since I would be providing services according to his direction, though for those services I would be rendered payment. In this business, all kinds of tricks and tips are shared from photographer to assistant, and sometimes, even photographer to photographer, without expectation of remuneration. In fact, we have organizations for this: American Photographic Artists, American Society of Media Photographers, National Press Photographers Association, and Wedding Photographers International, to name a few. When I assist, I learn little bits here and there, and if a photographer wishes me to keep certain "trade secrets" quiet, I do. However, when they show or teach me those things, there is never a "I showed/taught you this, so you owe me your time, money or both." I also know, for a fact, that I was directly benefiting him in my work. I was doing post-production work on projects which he had shot where I had been assisting him as well as projects which he still needed to deliver to clients. He was making all kinds of claims that he had taken his valuable time to instruct me, but, per the law, for his business "on occasion its operations may actually be impeded". When I told him I didn't want to continue doing the post-production for him anymore, he told me that he could have already had all his work done if it hadn't been for me doing it at the pace I was and at the cost of time for his oversight. So I can conclude that there are 2 options: a) he is overvaluing the education experience he provided to me or, b) that I was actually benefiting him, but he's just flexing some muscle Given the nature of our relationship (the overabundance of him mentioning that he had spent $100Ks going to Brooks and constantly reminding me of all kinds of experience he has in the industry), I feel like the answer is b). I was definitely not reworking stuff he had already delivered to his own clients as final products (something I feel would fall under the rules of education/instruction for interns/trainees). On top of all this, the laws concerning what constitutes and internship and even a trainee are weighted heavily in my favor (sorry, photographer-dude, we're in a blue state). I think that if he wants to push this, I believe could take him to court and sue him not only for his invoices, but time I spent doing the post-production for him, and equipment I purchased to do the work. Is that true, or close to it? (Also, yes, I think the IRS threat is good (and a reason I quit doing that work for him -- I do 1099s for the express reason that I am not beholden to someone else's desires for help), but threatening legal action on top of it, should that be the terms it comes to, will demonstrate my leverage.) [edit: spelling, clarity, formatting] Subjunctivitis fucked around with this message at 08:28 on Jun 11, 2013 |
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Jun 11, 2013 08:24
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FWIW, it is absolutely against the law, unless you are a registered non-profit, to have "interns" doing labor from which you derive material benefit without paying them. http://www.dol.gov/whd/regs/compliance/whdfs71.htm You could absolutely and correctly threaten to bring an investigation against him (or you could not threaten to, and do it anyways).
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Jun 11, 2013 16:06
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I just got off the phone with my bank, regarding the checks he wrote me and which I deposited on Friday. Apparently, he issued a stop payment, so I would assume that he has no intent on paying me. I'm curious to hear what he has to say when we speak.
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Jun 11, 2013 17:23
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You cannot stop payment on a check because you don't want it to clear. That is not a valid reason. Well you can but it probably violates state law. It is also check fraud in most places. Your county or city should have a check fraud website or help line that can help you recover what you are owed plus penalties and court costs. Not paying for something you received is called theft. I would call this ahole and let him know you are bringing a world of hurt in his direction.
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Jun 11, 2013 20:56
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Does anyone know of have a good idea regarding the potential of me recovering court costs and attorney fees should I end up taking this person to court? (i.e. assuming he has no intention of paying me for the invoices and reimbursing me for his expenses without a court-ordered judgement.)
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Jun 12, 2013 01:10
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I texted the photographer saying that I wish to speak in person and asked if his studio partner could be present. My text message said: "I will speak to you in person, not over the phone. I can meet you at your studio with PERSON X present." The photographer sent me this e-mail in reply: The Photographer posted:Redacted, but here are the basic points: I am thinking of replying with this: Subjunctivitis posted:Photographer, Thoughts? edit: deleted verbatim e-mail from the photographer. I don't need a copyright lawyer or someone to find this on the internet and then get sued for libel/slander/etc. Subjunctivitis fucked around with this message at 01:50 on Jun 13, 2013 |
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Jun 12, 2013 02:05
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I also just received a voicemail from him telling me that he had met with his attorney and said basically, "I think if we can just talk, then, I think we can work something out regarding our agreement and you'll come out better in the end."
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Jun 12, 2013 02:15
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Subjunctivitis posted:Does anyone know of have a good idea regarding the potential of me recovering court costs and attorney fees should I end up taking this person to court? Very unlikely. The default rule in the US is that each side pays its own costs, and it's pretty hard to overcome that default and get an award of attorney's fees, too.
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Jun 12, 2013 04:28
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So I'm trying to research information on laws regarding a breach of contract. I feel like this photographer views this situation as me breaching a verbal contract we had, which is why he is taking some action. However, the terms (well, the way he understood the terms vs. the way I understood the terms) were on the foundation of an internship situation, i.e., I was not getting paid. To further illuminate (and to reiterate), I was also performing work for him which needed to be done -- editing/retouching photos for client who had yet to receive their products. It looks like (and has been noted by oRenj9) that this arrangement was in violation of laws regarding internships: "The employer must derive 'no immediate advantage from the activities of the intern.'" The photographer asserts that our agreement was that, once we began the internship process, I would comply with the internship to completion. I assert that it was a probationary situation, where he could terminate the internship had I not been performing to standards. I also assert that, since he was at liberty to terminate the process, I would also be able to terminate the process, should I desire to, for some reason. I want to stick with his assertion (that I was required to complete the internship process upon entering it) for the sake of this argument. Does he have any legal recourse against me, since I was interning unpaid, and that I was also doing actual work that he needed to perform to make his business function?
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Jun 12, 2013 08:05
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SlapActionJackson posted:Very unlikely. The default rule in the US is that each side pays its own costs, and it's pretty hard to overcome that default and get an award of attorney's fees, too. The California Department of Consumer Affairs states that I could (nay, should) ask for my fees to be rewarded to me: At the hearing, you should ask the judge to award your court costs if you win. Costs are out-of-pocket fees and charges a party pays to file and present a lawsuit. If you're awarded costs, the award is included in the judgment against the losing party. In most cases, costs are awarded to the prevailing (winning) party, but you should still ask the judge for them at the hearing. If neither party is truly a "prevailing party," the judgment might not include awards of either costs or interest. In that situation, both parties may be "winners" — always a goal in small claims court. Be sure to keep receipts for your filing fees and other out-of-pocket costs. Only some kinds of costs (called "allowable costs") can be recovered from the losing party but others can't. Costs that may be recovered include amounts you have paid for court filing fees; expenses of service of process (including the cost of locating the defendant for service, if reasonable); witness fees (but generally not for expert witnesses); and fees for service of subpoenas (of either witnesses or documents). Since other kinds of out-of-pocket expenses might be awarded at the judge's discretion, bring your receipts to the hearing. However, expenses other than those listed above are not ordinarily awarded. It's unclear to me, however, if that includes fees incurred for an attorney's preparation of documents...
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Jun 12, 2013 08:09
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Subjunctivitis posted:The California Department of Consumer Affairs states that I could (nay, should) ask for my fees to be rewarded to me: Go post a summary and a link to this thread in the legal questions thread in ask/tell.
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Jun 12, 2013 15:46
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I saw this in the New York Times today and it seems similar to what you are going through. Judge Rules for Interns Who Sued Fox Searchlight quote:The judge noted that these internships did not foster an educational environment and that the studio received the benefits of the work.
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Jun 12, 2013 16:28
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EAT THE EGGS RICOLA posted:Go post a summary and a link to this thread in the legal questions thread in ask/tell. Posted. I did not send the e-mail sample I posed above, but instead sent him a response asking him for his reasons to request a refund, what his concerns or issues are, and what kind of proposal he has in mind. I am also only communicating with him via text and e-mail, since he does not wish to meet with me in person and with a witness present to our conversations.
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Jun 12, 2013 18:24
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Look, Despite the poo poo he is pulling- like someone else posted- he wrote you a check and that acknowledges his debt to you. He created evidence. You need to contact your bank and get those checks, or receipts of those checks. Also have the intern legal research prepared and the recent ruling in the NYtimes. Also mention the IRS statement misclassification. Do your research on contacting the IRS, Small Claims Court, and gathering the evidence. He will pay you in the end. It sounds like he just wants to jerk you around, have some long winded phone conversation about how he changed his mind and you disappointed him and if you suck his dick a little bit he will pay you what he should. So you can stroke his ego and get your money (but lose your position and respect) or just come in strong and acknowledge you won't get the money now, but can hurt his reputation and legally damage him.
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Jun 12, 2013 20:40
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Thanks for the feedback, folks. Here's an update: I just got off the phone with the California DOL, and the representative I spoke with also feels as if I was being treated like an employee (i.e. in regards to the "internship" situation). She recommended I file a complaint form. Also, I just received a response from the photographer via e-mail. Here's the gist, I put my own notes in brackets: -- He's fine with discussing this via e-mail, though it sounds like he really wants to talk on the phone, because it's easier. -- He says that any verbal agreement or disagreement we might have over the phone would not be received as substitute for a written agreement [Well, I believe it can, if there is no conflict between the oral and written agreement] -- He says that there must be a signed written agreement [uhhhh, sure? what is it and why?] -- He says my actions are being watched... [uh-huh], and that I should consider potential damages to his business including what happens to the photos of his, copyright infringement, and trade secrets Of course he's in a huff about his business secrets and potential copyright infringement. I've had plenty of photographers request that I either don't share stuff I do on the job with other photographers, or sometimes, to even mention that I had worked with them to other photographers. He's definitely the most Nervous Nelly I've encountered.
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Jun 13, 2013 00:45
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Stop dealing with him. All you are going to do is get pissed off and probably do something stupid. He cancelled a check he had written you because he decided not to pay you after the fact. Stop emailing and lawyer up. If a lawyer tells you the amount is to low to deal with I'm sure they'll at least be happy to point you towards small claims.
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Jun 13, 2013 01:33
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Subjunctivitis posted:-- He's fine with discussing this via e-mail, though it sounds like he really wants to talk on the phone, because it's easier. That's probably not why he wants to talk on the phone.
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Jun 13, 2013 01:39
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Thoguh posted:Stop dealing with him. All you are going to do is get pissed off and probably do something stupid. He cancelled a check he had written you because he decided not to pay you after the fact. Stop emailing and lawyer up. If a lawyer tells you the amount is to low to deal with I'm sure they'll at least be happy to point you towards small claims. Getting too upset or angry is a fundamental reason why I wish to have our discussion limited to text/e-mail. Also for this reason: Xandu posted:That's probably not why he wants to talk on the phone. I get the impression that he wants to try to bully me into agreeing to something on his terms, where if he's angered me by cancelling his checks, he can potentially have the upper-hand in the conversation. He's also really good about not being a good communicator. He likes to say things one way, where when I tell him what I think he means, he means something else (also see: our internship terms). On one side he plays the victim, on the other side he puffs himself up with hot air: "You know, quitting this internship is really going to hurt me and my business. Now I have to find someone else" to "I have given you so much training and so much knowledge, and I have given you all this valuable time of mine to work with you on these projects, when I could have just done them myself." I am also aware of how verbal agreements can absolutely hold weight in court, which is why I am not going to speak with him on the phone. I believe he is trying to play me for a sap. The list goes on for why I'm only communicating with him via text/e-mail. I sent him a reply to the e-mail I received today telling him that he did not answer my questions. He didn't say why he cancelled the checks, didn't mention his intentions, and he didn't give me any indication of what terms may or may not be on some contract he would like for me to sign. I also told him that if this matter was of such high importance to him, it would behoove him to clearly and plainly inform me in writing, where things could be misunderstood or jumbled in a phone conversation. I also told him that he now owes me bank fees. I am waiting on further replies from him and I'm sending him revised invoices for those which are past due and including interest and bank fees. I am not yet going to get a lawyer until I see what his terms are and what his intentions to pay are.
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Jun 13, 2013 02:05
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Stop talking with him on the phone, you've probably done enough damage already and he may be recording the calls. Get a lawyer before people start posting the pissing in a well meme. Edit: it is *painfully* obvious that he will string you along and gently caress with you until you do. baquerd fucked around with this message at 02:37 on Jun 13, 2013 |
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Jun 13, 2013 02:33
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Subjunctivitis posted:what his terms are and what his intentions to pay are. He wrote you a check for the amount you were owed. He then stopped payment on that check. His "terms" are irrelevant and his intention to not pay is pretty clear.
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Jun 13, 2013 02:41
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Subjunctivitis posted:I also just received a voicemail from him telling me that he had met with his attorney and said basically, "I think if we can just talk, then, I think we can work something out regarding our agreement and you'll come out better in the end." I'm willing to bet his attorney told him he's wrong too (if he even has one), which is why he wants to talk to you on the phone and work something out. Dude knows he's hosed. No attorney would ever advise his/her client to call you on the phone to "work something out regarding an agreement" so that THE OTHER GUY comes out better in the end.
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Jun 13, 2013 05:37
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He is working with his lawyer, you are not working with a lawyer, either get one or make one last demand to be paid and stop communicating with him you can only make it worse for yourself. Do not try to figure out the law yourself, there are too many pits and holes to fall through and completely screw yourself over going that route.
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Jun 13, 2013 13:08
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baquerd posted:Stop talking with him on the phone, you've probably done enough damage already and he may be recording the calls. Get a lawyer before people start posting the pissing in a well meme. I'm not speaking with him on the phone. The last occasion I spoke with him on the phone was the day I quit working with him. The county bar association provides some free, but brief, consultations with lawyers. I will be speaking with an employment attorney and a small claims attorney as soon as I can. If it comes to court, I wish to do the most damage to his reputation possible. If my understanding is correct, with a small claims filing, the defendant can file to reschedule the hearing, and potentially, just not show up. I want to subpoena him. If I end up going that route, I'm not going to show him my cards and say, "Oh, I've been speaking with a lawyer, Mr. Photographer, better deal with me now or else!" in the same tacky manner he is. Skywriter posted:I'm willing to bet his attorney told him he's wrong too (if he even has one), which is why he wants to talk to you on the phone and work something out. Dude knows he's hosed. No attorney would ever advise his/her client to call you on the phone to "work something out regarding an agreement" so that THE OTHER GUY comes out better in the end. I believe he means that I would be worse off for noncompliance with whatever his demands are, not that I will be better off than him in the end. Like, "Hey, I could put you in cement shoes if you don't work things out with me, so you'd just be better off if you just work things out with me." Foma posted:He is working with his lawyer, you are not working with a lawyer, either get one or make one last demand to be paid and stop communicating with him you can only make it worse for yourself. Do not try to figure out the law yourself, there are too many pits and holes to fall through and completely screw yourself over going that route. Like I said above, I'm in the process of researching firms/lawyers that handle small claims as well as employment attorneys. I think that at this point I have gone as far as I can in researching the law myself, so yes, I agree with everyone about getting an attorney. There are a few points in consideration before me taking legal action: 1) 1 invoice and an expense report are now overdue. He will be charged interest at industry standard (3%). 2) He cancelled his checks, so he will now reimburse me for those fees as well. 3) 4 invoices are not due until July 1. These are all the damages done to me, or potential damages which could be done to me. Everything else he is saying are vague threats of legal action and I better keep his trade secrets secret, and be careful what I do with the pictures I have of his, or else. I would like to keep in mind that photographers frequently send strongly-worded letters to people who they feel might be violating or might violate their copyright with all kinds of threats of legal action. I think that, at best, he just wants me to sign an NDA. At worst, he wants me to sign an NDA and some crazy non-compete. While he has not given me very much information (and yes, he wants to tell me all these things on the phone to jerk me around), I have a hard time believing that the legal ramifications of non-payment are in his mind (well, maybe a little bit) and I seriously doubt that he has any idea concerning the legal action I could take regarding the "internship." My gut is telling me that he is thinking, "You sign this NDA with provisions X,Y,Z and I'll give you all your money." At this point, I am doing all the leg work I can do on my end and being patient about it and playing dumb with him. He, on the other hand, believes himself to be a big man with his "I got myself an attorney" and "You better watch what you say about me and do with my stuff." So again, to reiterate, if I take him to court, I want to prosecute him to the fullest extent, and I don't think that is in small claims court. I am in the process of researching and contacting attorneys to see what my options are before I take any course of action. I'm also waiting out to see what he is trying to do for a bit, because I think he is really really inflating his side of the situation with hot air and bullshit.
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Jun 13, 2013 17:11
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quote:"You know, quitting this internship is really going to hurt me and my business. Now I have to find someone else" I think that conclusively proves that it wasn't a legal internship.
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Jun 14, 2013 08:20
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Subjunctivitis posted:1) 1 invoice and an expense report are now overdue. He will be charged interest at industry standard (3%). Late fee. Not interest. Late fee. There are usury and other legal issues with using the term interest (especially at 3%), including some specific to your state. Don't go there in what's already a contentious situation. We as creatives skate by on this all the time, but it can come back and bite you in the rear end if someone gets ornery about it. Molten Llama fucked around with this message at 08:54 on Jun 14, 2013 |
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Jun 14, 2013 08:51
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Subjunctivitis posted:
This is sort of a tricky situation because I seriously doubt you need a lawyer's services to get your invoices paid but you probably need a lawyer to hold your hand/yell at you/bang your head against the wall explaining all this extraneous bullshit. Bottom line: you did Assistant work for him, he owes you money for that work. Ignore the "internship" issue. Ignore any other issue he brings up until he has a lawyer contact you. I assume your invoice is within small claims limits. I doubt a lawyer will agree to represent you under reasonable terms(do not retain a lawyer at an hourly rate for this case!) This is something you should be able to handle by yourself.* File in small claims for the assistant's work you did, include whatever damages you are allowed (small claims guidelines are usually pretty thorough and instructive). Photog dude will be issued a summons to appear in court as part of the process of getting the case started. Show up for your court dates with all your documentary evidence of present claims (invoices, receipts, cancelled checks anything reduced to paper) as well as evidence of previous payment. You've done assistant's work for awhile for this guy, show invoices and proof that they were paid in the past. This will show the judge the pattern established between you and photog dude, rate of pay, what sorts of expenses were being reimbursed, etc. IGNORE THE PHOTO EDITOR STUFF. You never tried to get paid for it in the past, you're not trying to get paid for it now, it is completely irrelevant to your claim for payment for services rendered. If photog dude wants to try and tell the judge that he doesn't have to pay for your assistant's work because he thinks you owe him more free photo editor labor the judge will laugh/yell/tell him to file a counterclaim recording (for someone's future entertainment) his grievance. Even if he is in the right about you owing him free labor (he's not!), he is still not at liberty to deny you payment for the assistant's work. Alternatively, select your favorite daytime tv judge and send his/her producers a letter explaining your situation because both you and photog dude are ripe for picking. Bonus: the show will pay any judgment you are awarded so unlike real small claims court you won't have to worry about collecting the money from photog dude after you win your case. I'm not going to use my hard earned/expensive legal skills to explain all the other poo poo you've got going on, or aid you in vindictive pursuits. I'm going to rely on the authoritative intimacy that can only created by an anonymous online legal advice giving relationship and say: just leave all the other poo poo alone. Don't talk to the guy about it. Don't negotiate with him about it. DO NOT SIGN ANYTHING. If he has a lawyer contact you about anything, go get yourself a lawyer. Until then, leave it be. *This is free legal advice offered by an attorney not licensed in your state, without concern or care for you tracking me down and filing bar complaints against me or suing me for malpractice because I have prepared a solid defense of "lol, look at this dumb bunny! I couldn't just leave him there!"
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Jun 14, 2013 15:58
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VideoTapir posted:I think that conclusively proves that it wasn't a legal internship. Yes. Molten Llama posted:Late fee. Not interest. Late fee. Thanks, will do. solovyov posted:This is sort of a tricky situation because I seriously doubt you need a lawyer's services to get your invoices paid but you probably need a lawyer to hold your hand/yell at you/bang your head against the wall explaining all this extraneous bullshit. Bottom line: you did Assistant work for him, he owes you money for that work. Ignore the "internship" issue. Ignore any other issue he brings up until he has a lawyer contact you. I assume your invoice is within small claims limits. I doubt a lawyer will agree to represent you under reasonable terms(do not retain a lawyer at an hourly rate for this case!) This is something you should be able to handle by yourself.* Yes. I have spoken with three of my friends who are attorneys, 2 out of state, another in-state (but different area of practice). All of whom are in agreement that, yes, he absolutely owes me money for the invoices and especially for the expenses I incurred on behalf of his business. I spent a long time talking to one of my friends (3 hours, geez) who specializes in small business, contract, and copyright/IP law and this lawyer found the photographer's whole approach to this situation as comically terrible. We're talking evading debt, possible fraud, making use of unpaid labor, etc. etc. and that the photographer is digging himself into a hole by dragging this out and handling the situation in this manner. We agreed that despite the perception of complexities of this situation, there are really only 2 big points of consideration: 1) Unpaid invoices/debt (which may include possible fraud) 2) The highly speculative validity of the "internship." We both agreed that the best course of action is to draft a letter demanding immediate pay, including damages I incurred. This lawyer friend of mine said I could write this letter myself and use the services of a local law school to aid me in my verbiage. If my debts are not satisfied by the denoted time, I will pursue a case within the small claims court. I have found a couple lawyers in my area who charge a fee to draft documents to aid in a small claims case, but I have yet to determine if it is worth it. That part is pretty cut and dry -- pay me all of my money, or else. The second part is in pursuit of a claim against the specious nature of the internship. This will contest the validity of the internship and demand pay for the work done in accordance to the law if it is found to be an employee relationship. That's the next step for me to take, and I will be getting on the horn with a lawyer to discuss this matter early next week (the local county bar association offers a free 30min consultation with a lawyer who operates in whichever specified field you need aid). My lawyer friend was amused by the fact that the photographer told me, "We are in the process of drafting a letter to you, and you should receive it by early next week at the latest, but hopefully sooner." This friend of mine has doubts about the fact that the photographer even has a lawyer, since, even if the photographer has certain specific needs/demands, if the photographer's lawyer was worth the ink printed on the lawyer's diploma, then the photographer's lawyer would have made sure I had a letter in my hand by now (and I don't; mail moves quicker than one might think). Also, my lawyer friend said that the photographer cannot withhold payment of his debts if I don't sign whatever agreement/contract he is trying to issue to me. This lawyer friend of mine said that any new agreement/contract cannot bear weight on any past or previous agreement/contract which we (the photographer and myself) may have had, and if the photographer wishes for me to sign a new one, I am obliged to receive something in return for my signature. Under no circumstance am I obliged to sign whatever agreement or contract the photographer sends my way if I am not happy with the terms. My lawyer friend says that I must maintain focus on whichever matter is at hand because my lawyer friend believes that the photographer will try to confuse things if brought before a judge. If the discussion is about unpaid invoices, I am not to discuss the "internship" or any agreements/contracts. If the discussion is about the "internship," I am not to discuss unpaid invoices, agreements/contracts, etc. It is in the photographer's best interests to try and confuse me, the lawyers, the judge, and any witnesses, but as long as I maintain focus on each distinct issue at hand, even to the point of being annoyingly pedantic and repetitive, I should have a very good case. Right now, I am researching sample letters demanding pay, past due notices etc. so I can begin writing one up (if anyone has any knowledge of where I can find some good ones, I would love that). Acquiring evidence for demanding pay is easy: download and print bank statements, print up my invoices, and I'm pretty much good. I can collect copies of receipts for expenses from the respective parties, if need be. I am also collecting any and all evidence in regards to the internship -- including internet records, phone records, e-mails, etc. ------------------------- *I am aware that any advice I have received thus far cannot be quoted in a case or brought up as evidence. I am very conscious of the fact that I am seeking casual, friendly advice, even though I am receiving advice from practicing and licensed (is that what you lawyers are? Licensed? Barred?) attorneys. I am fully aware that if I do require valid legal representation, then I will have to seek out and hire a professional in my area.* p.s. I really do like the idea of contacting a daytime tv court judge, esp. since he occasionally does celebrity work.
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Jun 14, 2013 21:49
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Sorry about no update in a while, I will have one tonight or tomorrow AM.
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Jun 19, 2013 23:56
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OK, here's the update. I still have yet to hear anything back from the photographer; no response to the e-mail I sent him, nor the letter he said he was sending me. Since I haven't received a letter from him yet, I strongly believe that he has no attorney (or that his "attorney" is a friend of his walking him through the process like I have). In the meantime, I have printed and organized all my previous invoices which he has paid, along with bank deposit receipts which display an image of the checks he wrote me. I have also printed copies of the invoice and expense report, the checks for which he cancelled, to send to him with a demand for payment letter. I have also printed the invoices which will be due on July 1st to be included with a separate notice/reminder of due date to send to him. I spoke with the lawyer referral service the local bar association has and got a few numbers, but I haven't called them yet. Since I have yet to receive a letter, I'm just busy filling out paperwork to file with the court if he does not pay all of those bills (previous cancelled checks/past-due invoice and expenses as well as those future invoices due on July 1st) on time. I will be sending out those notices as soon as I receive a response from him or by Saturday, whichever is earliest. I feel like his letter may include some information which may incriminate himself (or who knows what), which is why I am not sending those letters out immediately and why I haven't yet consulted with a lawyer. Also, I have not sent those letters out because there are still invoices that are not due yet, and I want to send the demand for payment and notice of due date at the same time. I'm basically trying to get a better feel for his stance before I start threatening him with potential legal action if I don't need to make those threats. I really think he jumped the gun on implying a threat of legal action on his part, and I don't want to make that mistake on my end.
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Jun 20, 2013 19:44
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Subjunctivitis posted:I'm basically trying to get a better feel for his stance before I start threatening him with potential legal action if I don't need to make those threats. He's not going to pay you. Why on earth do you think he could possibly have any intention of paying you? You don't need him to "incriminate himself". You did work, he wrote you a check, he cancelled said check. This is what he's done 1. Cancelled a check that he wrote you just because he decided not to pay you. 2. Gave you the runaround for a few days 3. Cut off communication with you. You are being a pushover. Don't be a pushover. Go to court, get your money. Hell, its very possible just filing will be enough to make him pay up.
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Jun 20, 2013 19:56
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quote:You are being a pushover. Don't be a pushover. Go to court, get your money. Hell, its very possible just filing will be enough to make him pay up. I think sending a formal letter isn't a bad idea. He's clearly working through the steps here. Although actually what you might do is just wait until he fails to pay your July 1 invoices and then include those in the court filing. Take care of all your birds with one stone. I don't know if a court filing in your favor on the past due stuff would somehow apply to invoices which he is not "late" on yet.
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Jun 20, 2013 20:47
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kaishek posted:I think sending a formal letter isn't a bad idea. He's clearly working through the steps here. Although actually what you might do is just wait until he fails to pay your July 1 invoices and then include those in the court filing. Take care of all your birds with one stone. I don't know if a court filing in your favor on the past due stuff would somehow apply to invoices which he is not "late" on yet. Exactly. And that's what I'm doing. The court wants to see the two parties try to come to a resolution on their own before hearing the case. I've already done my part in asking him why he cancelled the checks and asking him to tell me what his proposal is and what sort of business agreements he wants to make. I also still want to see what he has to say before I start implying and taking legal recourse, and I don't want any wires to be crossed. I cannot file against the unpaid invoices (the ones due on July 1) or demand immediate payment for them because that violates the Net 30 terms on those invoices. Sending him a demand for payment on the 2 checks he cancelled informs him that I will take him to court over those, and sending him a separate reminder (going out on the same date) of the due date for the remaining invoices says, "Hint hint, non-payment for these could also be included in that case." That said, if I have to file a claim against him, it probably will not be until the first week of July. The court system really likes their process and procedures to be followed, and I intend to stay on their good side. The photographer has already made some glaring mistakes, I believe he would probably make more, and I am not interested in making my own mistakes. I understand this process will take some time, and with it, patience, so that's what I'm trying to do. The thing I am keeping in mind is that he is the one in violation and he is the one on a time crunch to resolve this between us. Hell, I don't have to file a claim for months. I do mostly agree with Thoguh, though, that the photographer doesn't have intention to pay his bills. I believe that the photographer intends to try to hold payment for those bills over my head in order to get me to sign something that makes him happy, ie. "I'm not going to pay you until you sign this contract for me." If I believed the photographer does have intention to pay me, I wouldn't be doing all the research and legwork that I am.
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Jun 20, 2013 21:26
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You are going through all the right steps. The only thing I can think of is that he will pay you after you talk to him, acknowledge that you screwed him over, and kiss his ring. He wants to feel like he is getting something (other than your loving labor/services) to pay you with. That is why he cancelled the check. He realized he should try and gently caress with you a little bit.
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Jun 20, 2013 21:44
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I just got the letter from the photographer. It is very close to what I expected him to say. Here are the highlights: ------------------------------ "As compensation for the professional one-on-one training you agreed to complete 4 photographic editing and or retouching projects at a professionally acceptable level for The Photographer after your training was completed." -- There was no set time-frame or number of projects. He is making this poo poo up now in order to make a court case. Even when I quit the internship, he told me that the process would be complete after some number of projects or after some amount of time, depending on when he was ready (or whatever). Again, those terms were unclear (from the outset of the internship to my self-termination) except for the fact that I was doing work for him for free. [The internship should be of a fixed duration, established prior to the outset of the internship. Further, unpaid internships generally should not be used by the employer as a trial period for individuals seeking employment at the conclusion of the internship period.] "Further more it was the spirt and intent of the training and agreement that after the training and compensation projects that you would be an independent contractor providing an ongoing resource to the studio on a fee for service basis to produce finished professional photographic images." -- Laws regarding interns/trainees denote the fact that there can be no intent to hire [The intern is not necessarily entitled to a job at the conclusion of the internship;] "On June 5, 2013, you informed The Photographer that you would not be completing your training or fulfilling your agreement to compensate The Photographer for such training and you would not be an ongoing resources as such for The Photographer for such work. You did this without reason or cause to do so. At this time you were informed that this was a violation of the terms and conditions of our agreement." -- Laws regarding interns/trainees also say that interns/trainees cannot perform actual work [The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;] "You can complete and or be in compliance with our agreement by: 1) Completing the 4 projects that you had agreed to do once your training was completed. Given that you were very close to completing your training this is within your skill set and capability to reasonably complete the projects at close to a professional level - given the circumstances The Photographer is willing to accept your work at your current level although this is less than what was agreed upon in our agreement and furthermore less than what we agreed since you were suppose to be an ongoing resources for such work. 2) Compensate The Photographer for the one-on-one training you received over a two month period of time and do not complete the 4 projects." -- So he wants to further indenture me to do free work for him or to pay him for all his hard work and knowledge in training me -- Again, intern/trainee laws say that periods of internships/training should expect that there is some interruption of normal business routine and consumption of resources on behalf of the employer (see above) -- By the way, when I quit the internship, I offered to do 2 more projects (while he, of course, sought someone to replace me) "These invoices are being held without payment until you complete the projects as agreed and or will be used to off set the balance you owe The Photographer for training. Please be aware that it is completely legal to hold payment or use it as an off set against your monies owed The Photographer." -- Uh, yeah, I'm not quite sure that's legal, but, uh, I could maybe possibly be wrong? But I doubt it. He is giving me until July 15th to reply. ------------------------------ I find this whole thing so laughable. It's really obvious that I was an asset to him, otherwise he wouldn't be demanding that I do more work for him. If I don't want to do more work for him, he wants to punish me by charging me. Goddamn I should call Judge Joe Brown right now. ------------------------------ There's more explanation on the website for the Department of Labor: Internship Programs Under The Fair Labor Standards Act Also see this: WANTED -- A FEW GOOD INTERNS. PAY NOT INCLUDED. A Summary of California Rules Governing Unpaid Interns and Trainees Subjunctivitis fucked around with this message at 22:06 on Jun 21, 2013 |
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Jun 21, 2013 21:33
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Can you post the full letter ? With out of context quotes we can't really fully understand the situation. Take out your personal info of course.
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Jun 21, 2013 21:52
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The Photographer's Letter posted:This letter is to inform you (Subjunctivitis) that you have violated the terms and
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Jun 21, 2013 22:05
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