1099 vs W-2 for photo and video crew
The short answer
Whether a crew member is a 1099 contractor or a W-2 employee depends on the working relationship. It does not depend on what your agreement calls them. The IRS looks at three things. How much you control the work, who carries the money risk, and what kind of relationship it is. Take a second shooter who brings their own gear, sets their own rate and works for several studios. They are usually a contractor. Someone who works only for you, on your schedule, with your gear, under your direction, often is not. That holds whatever the paperwork says.
You want to know whether you have your crew in the right box. And what happens if you do not.
Step by step
- 1
Ask how much you control the work
Ask how much you direct the work. Setting hours, saying how the job is done, requiring certain gear and close supervision all point to employment. Saying what the finished work must be, but not how to do it, points to contracting.
- 2
Ask who carries the money risk
Contractors usually bring their own gear and set their own rates. They can lose money on a job, and they work for many clients. Someone who depends on you alone for their income looks more like an employee.
- 3
Ask what kind of relationship it is
Look at how long it lasts and how central it is. An open-ended arrangement, benefits, and work that is the core of your business all weigh toward employment.
- 4
Write down your reasons at the time
Write down why you put each person in the box you did, when you did it. A note made at the time carries far more weight in an audit than a story built afterwards.
- 5
Check your state rules separately
Several states use stricter tests than the federal one. California’s ABC test matters most for creative freelancers. Passing the IRS test does not mean you pass your state’s.
- 6
Get advice before you change anything
This guide is general information, not tax or legal advice. Getting this wrong can cost real money. Talk to a qualified accountant or an employment lawyer in your state before you change how you hire crew.
Where this goes wrong
Believing the contract decides it
A document called "Independent Contractor Agreement" does not make someone a contractor. The IRS and your state look at how the relationship really works.
Ignoring state law because the federal test passes
State tests can be much stricter. Where they differ, the stricter test wins for state purposes.
Holding back contractor pay until a manager approves it
Making pay depend on a manager’s review of quality looks like control and supervision. Those are two of the things that push a relationship toward employment.
Keeping a long-time regular as a freelancer for ever
Someone who has shot every weekend for two years, only for you, is the classic case of getting it wrong. It does not matter how it started.
Questions people ask
Is a second shooter a 1099 contractor?
Usually, but not always. One who works for several studios, brings their own gear and sets their own rate generally is. One who works only for you, on your schedule, with your gear, may not be.
What happens if I misclassify a crew member?
You may owe back taxes, unpaid payroll taxes, interest and penalties. Some states add extra damages on top. The business carries the cost, not the worker.
Does paying someone by invoice make them a contractor?
No. How you pay carries little weight. The test is control and the kind of relationship.