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 | firstname.lastname@example.org
Ann Husaini | email@example.com
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.
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