Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS REGULATION - PART 7 - VARIANCES AND EXCLUSIONS

ESR Section 38.1 – Compliance requirements – talent agencies


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This regulation outlines the requirements a talent agency must observe in order to maintain its licence. 


Text of Legislation

38.1. (1) A talent agency must comply with all of the following:

(a) all fees paid to the talent agency by an actor, performer, extra or technical creative film person who is employed as a consequence of the efforts of the talent agency, are not more than 15 percent of the wages owing to the actor, performer, extra or technical creative film person from his or her employment;

(b) the gross income of an actor, performer, extra or technical creative film person employed as a consequence of the efforts of the talent agency, less the fees described in paragraph (a), is not less than the corresponding gross income that the actor, performer, extra or technical creative film person would receive for the employment if paid the applicable minimum wage;

(c) the talent agency must not charge an actor, performer, extra or technical creative film person a fee for taking and providing photographs of the actor, performer, extra or technical creative film person, unless the fee

(i) does not exceed $25 a year, and
(ii) is only deducted from payment of wages received by the actor, performer, extra or technical creative film person;

(d) no fees, other than the fees described in paragraphs (a) and (c), are charged by the talent agency;

(e) if the wages of an actor, performer, extra or technical creative film person employed as a consequence of the efforts of the talent agency, less the fee described in paragraphs (a) and (c), are received by the talent agency, they must be paid to the actor, performer, extra or technical creative film person within

(i) 5 business days of receipt if payment is made from within British Columbia, or
(ii) 12 business days of receipt if payment is made from outside British Columbia;

(f) if a talent agency cannot locate an actor, performer, extra or technical creative film person to pay the wages received by the talent agency, they must be forwarded to the director within 60 days after receipt by the talent agency;

(g) a talent agency must not make a payment, directly or indirectly, to a person for obtaining or assisting in obtaining employment for someone other than by paying for any form of advertisement placed by the talent agency;

(h) a talent agency must display its licence number on any contract or written agreement made with an actor, performer, extra or technical creative film person;

(i) records must be kept to indicate for each actor, performer, extra or technical creative film person employed as a consequence of the efforts of the talent agency,

(i) the amount of money received by the talent agency for the employment,
(ii) the amount the talent agency is claiming as its fee, and
(iii) the amount paid to the actor, performer, extra or technical creative film person;

(j) records must be kept of

(i) the name and address of each employer for whom the talent agency provides a service, and
(ii) the name and address of each client employed as an actor, performer, extra or technical creative film person as a consequence of the efforts of the talent agency, or who is provided with information about employers seeking actors, performers, extras or technical creative film persons;

(k) the records referred to in paragraphs (i) and (j) must be

(i) in the English language,
(ii) kept at the talent agency's principal place of business in British Columbia, and
(iii) retained by the talent agency for not less than 2 years.

(2) The director must give a talent agency a receipt for any wages received from the talent agency under subsection (1) (f).


Policy Interpretation

Talent agencies must comply with certain provisions of the Employment Standards Act and Regulation which apply specifically to this sector. For purposes of this section, a “client” is considered to be any actor, performer, extra or technical creative film person who has been offered, promised, or has gained employment through the efforts of a talent agency.

Subsection (1)

A talent agency must comply with the following:

a) The agency fee must not be more than 15% of the wages earned by a client;

Talent agencies are permitted to charge fees to clients who are employed as a result of the efforts made by the talent agency. While the Regulation does not specify on what items an agency can charge a fee, the total amount of fees paid by clients cannot exceed an amount that equals 15 percent of the wages the client earns during the course of employment. For this reason, it is important to define wages, so there is no uncertainty about what amount the maximum 15 percent fee is based on. The definition of wages in the Act includes any money paid or payable by an employer for work as well as money that is paid as an incentive and relates to hours of work, production or efficiency.

The definition of wages also specifies payments that are not considered to be wages, including: gratuities; gifts or money not related to hours of work, production or efficiency; and personal allowances or expenses.

The following table indicates whether some of the most common payments received by performers are wages:

Wages Not Wages
Wages for straight time and overtime Travel or mileage expenses
Vacation pay GST
Wages for wardrobe call Retirement payments*
Wages for travel time Insurance benefits/payments
Use fees and residuals Per diems
Meal penalties or meal periods Wardrobe fees/Clothing allowance/Special items
Audition reader fees Compensation for specialized items/prop rentals
Improv fees Late payment penalties
Stunt performance fees Audition delay fees
Use of television commercials in a program Audition recall fees
Rest between days Callback fees

*”Retirement payments” refers to regularly scheduled payments a client may be receiving, not to deductions taken from a client's wages for future retirement benefits.

Example 1 

If a performer does not receive a required break during a production he or she may receive a payment called a meal penalty. The meal penalty is calculated using the performer's hours of work without a break multiplied by the performer's overtime rate of pay. Although it is called a "penalty" the performer is actually receiving a premium rate of pay for the time they spend performing work. Therefore, this payment is considered wages and may be included in the global amount used to calculate the maximum fee that can be charged by a talent agency.

Rest between days is another premium rate of pay a performer may receive for working within a specified rest period. This payment would also be considered wages and may be included in the global amount that is used to calculate the maximum fee charged by a talent agency.

Example 2

Two payments that are not wages are wardrobe and specialized item fees. Wardrobe fees are paid to performers for bringing their own clothing to use in a production. Specialized item fees are paid to performers for bringing their own props such as automobiles or pets to use in the production. The payments made to performers for wardrobe and specialized items are considered to be an allowance paid for the use of the performer's personal property. Because allowances are excluded from the definition of wages in the Act, a talent agency is not permitted to include these payments in the global amount that is used to calculate the maximum fee that can be charged by a talent agency.

Example 3

The following is an example of a wage statement received by a performer:

Wages:  

Regular

Overtime

Meal Penalty

Wardrobe Fee

$650.00

$0.00

$100.00

$250.00

Gross Wages $1,000.00
Deductions:  

Retirement 3%

Union Dues 2.25%

Work Permit

$30.00

$22.50

$15.50

Total Deductions $68.00
Net Wages $932.00

The talent agency is permitted to charge fees in an amount up to 15% of the gross wages of the performer. Although the above wage statement includes a $250 wardrobe fee in the “wages” section, a wardrobe fee does not meet the definition of wages in the Act. Therefore, the talent agency must deduct the wardrobe fee from the wage amount before it calculates its maximum fee. The talent agency is entitled to receive a maximum of $112.50 in fees based on the $750.00 which is actually wages. The performer will receive a cheque from the talent agency in the amount of $819.50 if the talent agency deducts the maximum 15% fee from the wages. ($932.00 – $112.50)

b) The client’s gross income, after he or she pays the agency fee, must not be less than minimum wage for all hours worked plus vacation pay.

In order to be paid its fees, a talent agency must negotiate a wage amount with a production company that will result in the client receiving at least minimum wage plus vacation pay after the agency fee is paid. If an agency negotiates a contract with a production company that will not leave enough to pay the client at least minimum wage plus vacation pay after fees are deducted, the agency must reduce its fees.

Minimum wage is $10.85 per hour.

Example 1

In order to charge its client a 15% fee and ensure that the client receives at least minimum wage of $11.35 plus vacation pay, the agency must negotiate at least $13.35 an hour with the production company. If it is not able to do so, it must reduce its fee.

Hourly rate                          $13.35
4% vacation pay                       .53
Total hourly rate                   13.88
Less 15% fee                          (2.08)
Total received by client  $11.80 (equivalent to $11.35/hr + 4% VP)

Example 2

A talent agency negotiates a rate of $13.00 an hour for its client. Since the client must receive at least $11.80 an hour (minimum wage of $11.35 plus vacation pay) after agency fees have been paid, the agency fee cannot exceed $1.72 an hour, or 13.23% of the agreed-upon wage rate.

Hourly rate                          $13.00
4% vacation pay                       .52
Total hourly rate                   13.52
Less agency fee                     (1.72)
Total received by client   $11.80

Hours worked at overtime rates

Where there is overtime worked in a day the client must receive an amount which is equal to minimum wage, applicable overtime and vacation pay for all hours worked after the agency fee is deducted.

GST

If an agency charges GST on its fee, it must inform clients of this in advance. If the agency fails to do this, the GST will be deemed to be included in the fee.

c) A talent agency must not charge a client a fee for taking and providing photographs unless the fee:

  • Is not more than $25 a year; and
  • Is only deducted from wages earned by the client;

d) Other than the maximum 15% agency fees and $25 maximum annual charge for photographs, no other fees may be charged to the client.

e) Where a talent agency has received wages earned by a client, the agency must pay these wages to the client, less the agency fee and charges for photographs if applicable, within:

  • five business days, if payment is made from within British Columbia; or
  • twelve business days if payment is made from outside British Columbia.

f) If a talent agency is unable to locate a client in order to pay wages that it has received on his or her behalf, the agency must forward the wages to the Director of Employment Standards within 60 days after the wages were received. The Director will hold the monies on behalf of the client and provide a receipt to the talent agency.

If wages received by a talent agency are not paid to a client in accordance with the Act and this Regulation, the enforcement provisions under Part 11 of the Act apply to the recovery of those wages.

g) A talent agency may not make a payment, directly or indirectly, to a person for obtaining or assisting in obtaining employment for someone else, other than by paying for any form of advertisement placed by the talent agency.

h) A talent agency’s licence number must be displayed on any contract or written agreement made with any client.

i) The following records must be kept for each client employed as a consequence of the efforts of the talent agency:

  • the amount of money received by the talent agency for employment;
  • the amount charged by the talent agency for its fee; and
  • the amount paid to the client.

j) The following records must also be kept by each talent agency:

  • the name and address of each employer for whom the talent agency provides a service; and
  • the name and address of each client who is employed as an actor, performer, extra or technical creative film person as a consequence of the efforts of the talent agency or who is provided with information about employers.

k) The record must be in English, and must be kept at the talent agency’s principal place of business in British Columbia for at least two years.

Companies incorporated outside of British Columbia must comply with all of the requirements of operating a business in the province, including registering as an extra-provincial company as required by the Business Corporations Act.

The Director will accept the British Columbia address of the attorney's office of an extra-provincial company as the agency's principal place of business to satisfy the requirement of paragraph (k) as long as the information required by paragraphs (i) and (j) can be accessed through that address.

Subsection (2)

Where a talent agency is unable to locate a client in order to pay wages that it has received on his or her behalf and the agency has forwarded the wages to the Director of Employment Standards in accordance with subsection (1)(f) above, the Director will provide a receipt to the talent agency in the amount of the money received.


Related Information

Related sections of the Act or Regulation

ESA

ESR

Other

For application forms: Employment Standards Forms

Talent Agencies: Talent Agencies in British Columbia

Children in Film: Employment of Young People in Entertainment

Factsheet

Talent Agencies