We've come a long way in the few years that Editors Collective has been around. And one of the most important things, I've learned? It's not about me. It's not about you. It's about us. It's about community. And that together we have the power to make a positive change.
On Thursday, March 13th, members of the Editors Collective gathered to hear some straight talk about reality TV show budgets. Doing the talking were: Showrunners Jill Michelle Williams (“The Biggest Loser,” “Toddlers in Tiaras”) and Francis Lyons ("MTV’s MADE"), Post Supervisor Liz Schmidt (“Teen Mom,” “Running Russell Simmons”), Head of Production Steve Gruskin (“10 Grand in Your Hand,” “Dear Genevieve”), and Entertainment Lawyer Jimmy Finn (“Amish Mafia,” “Impractical Jokers.”)
There’s a lot of talk among editors about the fabled “legal 40-hour week.” Did it ever even exist, and where did it go? And what about OT – some production companies pay time-and-a-half after 8 or 10 hours, others shrug and tell you “it’s not in the budget.” Is this legal? On Thursday, February 6, 2014, around 50 editors gathered together and got some straight answers from lawyers representing two of the top labor and employment law firms in the country: Mike Scimone of Outten & Golden (the employment law firm that recently won a class action lawsuit against Fox Searchlight Pictures on behalf of the “Black Swan intern”), and Eugene Eisner and Benjamin Dictor of Eisner & Associates (one of the nation’s top firms engaged in representing progressive labor unions and civil rights litigation.)
Here’s what we learned. First of all, there are two distinct sets of laws that project your rights as a worker: The first is Labor Law, as prescribed by the federal government’s Fair Labor Standards Act (FLSA) and in New York, by New York State Labor Law (which provides stronger worker protections than the FLSA.) Labor Law governs the Minimum Wage and Overtime Laws.
The second set of laws is the National Labor Relations Act (NLRA), which gives employees the right to form a labor union and engage in collective bargaining. This allows workers to negotiate terms more favorable than the minimums set by Labor Law.
Labor Law: Mandatory OT and the 40-hour-week
New York State Labor Law mandates that most workers be paid 1.5x their hourly rate for every hour worked after 40 per week. Sounds pretty great, right? The problem is, these laws are hard to enforce and violations are rampant, since the Department of Labor doesn’t have the resources to monitor every employer out there. On top of that, OT laws don’t actually cover everyone!
Employee vs Independent Contractor
OT laws only apply to employees — and not to independent contractors. Which are you? Turns out, it’s NOT determined by how you’re paid – so whether you’re on a 1099 or a W2, or have an S-Corp or an LLC, none of that has any bearing on how a judge would legally classify you. Under NYS Labor Law, it all comes down to how, where, and when you do your work, and how much control you have over your work. Here are some general guidelines:
Employee: Your employer has control over your hours, you work on the employer’s premises, and your employer has the right to review and approve your work.
Independent Contractor: You are free from supervision and direction, you set your own schedule, and you work on your own premises.
Judging from these guidelines, it seems pretty clear that most TV editors would fall into the employee classification. Great, that means we have a legal right to be paid for OT, right? Not so fast.
Professional OT Exemptions
There are several classifications of professionals that are exempt from OT laws. The one that editors might fall into is the Creative Professionals Exemption. I say “might” because the definition leaves a lot of room for debate – it all depends on how much creative control we do or don’t have over our work. And since there haven’t been many lawsuits on record concerning this exemption (and no lawsuits that specifically concern film/TV editors), there is not enough legal precedent to say for sure where we fall. The only way to get a clear ruling on this would be to bring a lawsuit against an employer who is not paying OT.
So, in summary – Labor Law has some great protections for workers, but OT laws don’t necessarily apply to us, and to prove that they do would require litigation.
Collective Bargaining and Labor Unions
Due to the challenges of applying and enforcing Labor Law, many professions historically turned to collective bargaining through labor unions – like the Motion Picture Editors Guild (MPEG). Unions wield the legal right to negotiate terms of employment that are more favorable than the standards set by Labor Law. These can include things like: higher rate minimums; health and retirement benefits; terms for OT; paid sick days; and procedures for filing grievances against an employer.
Benjamin Dictor, of Eisner & Associates put it this way: “Personally, I think the only thing that’s going to stop a downward trend of devaluing the work within reality TV is going to be a collective bargaining solution.” In other words: Unionize.
Obviously, union benefits don’t travel well in the reality TV world when there are only a few production companies with union contracts. But legal procedure mandates that production companies by unionized individually, shop by shop. Eventually, if a larger number of shops go union, there would be an impetus for these companies to band together and form a multiple employer bargaining agreement. This gives the production companies strength in solidarity when bargaining with the union — but it also benefits employees, by making the same union health and retirement plans transferable from shop to shop.
The ultimate end goal would be industry-wide organization, which means that everyone in the industry (editors, producers, shooters, etc.) would have union contracts. This would give workers more leverage through group solidarity and alliances between the different unions.
In the meantime, it would all have to start with a few editors organizing at a few production companies.
How to unionize a production company:
• First, in order to establish a “showing of interest,” 30% of those eligible to vote** must sign authorization cards to petition for a union election. These cards are collected by the union, and submitted to the National Labor Relations Bureau (NLRB.) Although a 30% vote is the minimum required, it is advisable to establish a 75% showing of interest, since there is often drop-off between this stage and the actual election.
• Then, the NLRB will hold an official election. The union must receive 50% + 1 votes to win.
• If the union wins the vote, the employer is then required by law to negotiate a deal with its employees, who are collectively represented by the union.
**Who is eligible to vote: Anyone who has worked a minimum of 6 weeks for the employer, within a 52-week “look-back” period from the date the votes are filed.
Eugene Eisner, of Eisner & Associates believes that if a handful of editors starts by unionizing a handful of production companies, “within a year you’ll have industry-wide bargaining.”
Alternatives to MPEG
One challenge that the union faces in the reality TV world: MPEG doesn’t necessarily have the greatest reputation among reality TV editors, and one reason is that the union has done little in the way of outreach. Unlike the WGA East — which has an entire department devoted to “nonfiction TV” and has a proactive outreach strategy – MPEG East has only four staff members total, and no outreach program.
Eugene Eisner and Benjamin Dictor spoke about a few alternative models for us to consider:
• Form a partially independent subgroup of reality TV editors within the existing Editors Guild. A precedent for this was: Within the musicians union Local 802, a group of disgruntled symphony and opera musicians felt that their interests were not being well represented. Instead of forming a new union that would be politically at odds with 802, they instead formed the International Conference of Symphony and Opera Musicians. They hired their own lawyer and drew up their own contracts, but operated under the umbrella of Local 802.
• Create a uniform minimum standards contract that each editor can individually present to employers at the start of a new gig. This is a tactic that was employed by the National Association of Women and Children’s Apparel Salesmen. Once a large number of salesmen began to individually present this contract, employers began to sign it.
• Circulate a suggested minimum pricing guide. This is a tactic employed by the Graphic Artist’s Guild. The minimums are only suggestions; however most employers have come to recognize the guide and treat it like a bible of industry rates.
The End Game
So what’s the final takeaway? Labor Laws are hard to define and even harder to enforce. If there’s any established way to regulate and improve work conditions, it is by unionizing. But reality TV editors aren’t necessarily convinced that MPEG is currently set up to do us justice. We’ve gotten some ideas for alternatives, and personally, I think setting up an independently run Conference of Reality TV Editors under the umbrella of MPEG sounds like a very interesting option to explore.
In the coming weeks, I and my Education & Advocacy co-coordinator Ann Husaini will be setting up follow-up meetings with the lawyers from this panel, to further explore some of the ideas they proposed. If anyone is interested in attending these meetings, please contact us at:
Anna Holtzman | email@example.com
Ann Husaini | firstname.lastname@example.org
Written by Anna Holtzman
Special thanks go to CUNY Law students Andrea Sands and Chris Adams for coordinating the speakers for this panel.
The Laws of Labor panel was the second in an ongoing series of EC | Education & Advocacy Panels. A recap of the first panel (a presentation by the WGA East) can be found below.
Our next panel will be The Reality of Budgets.
To receive email updates about this panel series, add yourself to the mailing list here:
Hi fellow editors! I attended the Editor’s Guild Reality TV Roundtable on 12/11/13. And here is the sense that I came away with:
Is MPEG perfect? Absolutely not. Is it worthwhile for editors to try to get more shows unionized? Definitely yes. And here’s why:
If your show doesn’t have a union deal, chances are you don’t have many (or any) of the following:
• Employer contributions to health benefits.
• Employer contributions to retirement funds.
• Regulated OT policy with guidelines for enforcement.
• A contract that binds employers to the terms of your employment.
• The power of group negotiation on the terms of that contract.
As members of the Editors Collective, we do have one great source of power, and that’s the power of communication with one another. I believe that we can (and should) use that power to build a cohesive movement toward unionizing the reality TV industry.
Reality editors are currently shaping 60% of all original content on the air – content that is making tons of profit for the networks. Don’t you think we deserve the same benefits that union editors are getting on scripted TV shows?
And for those of you who are skeptical of the Editors Guild – I hear you. MPEG is not a panacea; they are not the answer to all of our individual complaints. Think of them as a sort of extension of the Department of Labor, which was set up to protect workers’ rights. Is the Department of Labor bureaucratic, inefficient, and out of date with today’s working conditions? Sure. Would you rather have nobody protecting you at all? Heck no.
Over the coming months, the EC’s Education & Advocacy department will be communicating with MPEG. We’ll find out all the details on their contracts, how negotiation is carried out, how the health plans work, etc – and we’ll share this info with you so that we can all get better informed about what a unionized reality TV industry might look like.
In the meantime, here are some things you can do to learn more about the Guild:
• Stay informed: To keep up with what the union is doing, you can "like" the MPEG facebook page here: https://www.facebook.com/mpeg700
… follow MPEG on twitter here: @MPEG700
… and subscribe to MPEG's magazine here: https://www.editorsguild.com/Subscription.cfm
• Attend the EC | Education & Advocacy seminars. Look for announcements on the EC – or to be added to the mailing list, email me at email@example.com
And for those of you who are already on the same page, here are some things you can do to work with MPEG toward building a movement in reality/nonfiction TV:
• Spread the word: Repost stories about MPEG victories on the EC.
• Gather intelligence about who is working where, and what conditions are like at each production company. Share this info with your union reps.*
• Test the waters in your workplace: Talk to your co-workers to gauge if they are friendly to the idea of the union. If they are, contact your MPEG reps* to talk about what steps to take.
- Paul Moore (NYC): PMoore@editorsguild.com
- Jennifer Madar (NYC): JMadar@editorsguild.com
- Rob Callahan (national organizer): firstname.lastname@example.org
That’s all for now, but more is on the way… Stay tuned! And again, if you'd like to be on the mailing list for future EC | Education & Advocacy events, please email me at: email@example.com
Written by: Anna Holtzman
Change is in the air. At least it felt that way after Editors Collective’s first session in a series of industry related seminars. The event, held on December 5th, 2013, and organized by NYEC member and Education & Advocacy Director, Anna Holtzman, focused on the Writers Guild of America's (WGA) efforts to better the working conditions in reality television. The 26 enthusiastic NYEC members listened and engaged as guest speaker, Isham Christie, Organizer for WGA East, laid out the facts on the state of industry.
So here’s what we learned:
As editors, and members of NYEC, it’s no surprise to find out what jumps to the top of the list when it comes to our biggest gripes when it comes to unfair labor practices. Dark days (or weeks), Rate Stagnation, “Fuzzy Math” when it comes to the 10-hour standard day, were all heavy hitters. In fact, one member even recalled that ‘fuzzy math’ starting several years back when Viacom was sued by the Department of Labor and came up with the ‘hourly rate adjustment method’ as a solution to their unpaid labor. But the overwhelming concern at the top of everyone’s list comes down to the basics; length of the work day (and in turn, the work week - 50 hours!) and unpaid OT.
According to Mr. Christie, the boom of non-fiction programming can be traced back to the 1988 Writer’s Guild strike. In the absence of writers, networks found that they could produce reality based television that was way cheaper than scripted, and it was actually just as popular. So even after the strike ended, networks decided to exploit this newly popular and super cheap genre. Enter Survivor, Surreal Life, Celebrity Ghost Stories, Too Cute, Honey Boo, and an endless list of so many more. Today, non-fiction programming accounts for roughly 60% of all original programming. And it’s largely non-union. As union members were moving over into this non-fiction world, where all the work was; many WGA members found that – compared to scripted TV – non-fiction production is complete lawlessness.
Now, we all know Walmart. And how they’re business model works. And well, for them, it works. According to Mr. Christie, television networks are no different. They are in the acquisition business. They subcontract out their programming, requiring production companies to compete with one another for the business, doing whatever it takes to get the business they need to survive. The Race to the Bottom results in delivering cheaper and cheaper shows. And as budgets get lower, rates decrease, crews get smaller, and schedules get tighter. And it will only keep getting worse in a downward spiral until we push back. In the last 20-30 years, network profits in our industry have ballooned, while rates for those who make television have stagnated, and production schedules and crews have shrunk. Does that sound right to you? According to Christie, the rate of exploitation in our industry is probably higher than low wage fast food workers when you consider how much money is being made off of our labor.
The WGA does have a specific strategy when it comes to reigning in the ‘lawlessness’ that has over taken the wild west that is reality television production. This strategy, mind you, is much more proactive from that of MPEG. They’re going after the big and the bad. They plan to blanket the industry with as many union contracts as possible, making a name for themselves in the genre. And then when at least 7 companies sign on, they can parlay that into a master agreement between them all. Even though the WGA deals mainly with producers and associate producers, in a few cases the WGA West has organized reality shows where they signed both producers and editors, and then passed along the editors’ cards to MPEG. Plus, the WGA is adopting a so-called ‘good guy’ program that’s akin our EC Scores program; awarding production companies with this moniker to let freelancers know that these guys are the ‘good guys’. Editors Collective and the WGA are in talks of combining this into a single unified system.
Here in New York State, we have some of the country’s toughest labor laws. The Attorney General is currently investigating several large production companies for violations in the two most common categories; Misclassification of Workers (if you are working on the premises of your employer, you are - by definition of law - an employee and not an independent contractor. If you are being paid via 1099 instead of W2 -your employer is breaking the law - even if you’re paid through your LLC or S-Corp) And Wage Theft; non-payment of overtime. Existing labor law states that most workers are due overtime (at 1.5x) after 40 hrs of work per week. But! There are categories that are exempt from these OT laws. Editors and producers may fall under the Creative Professionals exemption, and/or the Highly Compensated Professionals exemption– if they earn $100K per year or more. The WGA is currently working with the Attorney General to try to get a legal assertion that producers are not overtime exempt. If they succeed, this will set a precedent that would undoubtedly strengthen the argument for us editors.
Allegations brought on by the WGA have led to the Attorney General investigating several production companies for wage theft. And if the ruling comes out in the WGA’s favor, these companies could stand to pay up to $4M in back wages. That’s no joke. And even mayor-elect Bill de Blasio has already pledged support to the WGA. So the Attorney General does have a vested interest in making sure that OT laws are adhered to going forward. That being said, it is possible to conclude that the WGA and Attorney General could pivot this lawsuit win into mandatory union contracts for these production companies. Now that’s change, people.
So. Where does that leave us? The editors. We’ve done a lot for ourselves already, but to really make change, concrete actions need to take place. Perhaps a Bill Of Rights needs to be drafted from with Editors Collective that outlines basic industry wide standards to which all genres of post production can adhere. Let’s be honest, editing is the glue that holds this ship (with a P, not a T!) together.
The evening extended beyond the allotted time and spilled over into the bar down the street. It's clear that the event was inspirational and hopefully a springboard for change.
Written by Geoff O'Brien. With contributions by Anna Holtzman. Photos by Anna Holtzan
Stay tuned for the audio from the December 5th event. Coming Soon...