6 Key Points for Remote Work Agreements in The Entertainment Industry
The entertainment industry, like many others, has been undergoing a major shift towards remote work in recent years. Beyond the COVID-19 Pandemic, the remote work in entertainment trend has been driven by advancements in technology, the rise of global connectivity, and the changing preferences of both employers and employees.
Gone are the days when the entertainment industry was centered solely in hotspots like NYC and LA. Now, like many industries, companies in the entertainment industry are able to tap into a wider pool of talent, regardless of location, by filling roles remotely. Telecommuting in show business is now a possibility. From writers and editors to designers and developers, there are a variety of positions that can be performed from anywhere in the world - and most likely, from a less expensive labor pool market.
Remote work has also opened up opportunities for creative professionals in different regions to break into the industry, giving rise to new film and television production centers in places like Atlanta, Toronto, and London - as well as Minneapolis, Newark, Austin, and Albuquerque. This not only creates new job opportunities but also diversifies the types of stories being told and perspectives being represented in the entertainment industry.
But with a widening pool of applicants comes the employment complications of multi-state hiring, as well.
It is a common misconception by employers that they follow the employment laws of the state in which the business is based. But without an employment agreement between the company and the remote worker, the law that will likely apply to the employee's employment will be the law from the location where the employee is working. Why does this matter? Let's say you are a Florida-based employer and decide to hire an employee in California for remote work. That employee will likely be subject to California law (in fact, California law generally requires that - and prohibits an employer from depriving an employee who primarily works in California the benefits of California law). In California, this would be true even if an employer tried to apply an employment agreement that contained another state's choice-of-law-provision (a nuance that is uncommon for employees from other states).
And by hiring a California employee, that California employee is entitled to all the benefits California law provides - including the wage and hour benefits and classification laws. Unlike Florida, where a non-exempt employee is only entitled to overtime if they work more than 40 hours in a week, under California law, a non-exempt employee is entitled to overtime if they work more than 8 hours in a day (and double time for 12 or more hours in a day). Also, unlike Florida where there are no specific meal or rest break requirements, that same non-exempt employee may be entitled to meal and rest breaks throughout their shift.
Such work arrangements become even more complicated when that remote employee seeks the opportunity to travel while working. While the employee may have the capacity to perform their work from any state - or country - if the employee is working in another state or country than where they were initially hired (and onboarded), they may be entitled to the benefits of the state or country in which they are performing the work at the time they are performing the work.
Ready to toss your hands up in the air and forbid remote work altogether?
It does not need to be so complicated, but this example should highlight the importance of seeking legal advice from an experienced employment lawyer before you decide to hire an employee outside of the state of your base of operations.
Remote Work Agreements in Entertainment Industry
Some situations may be solved by the utilization of an employment agreement that subjects the employee to a certain state's law. But whether this is a viable solution will depend on the situation. Another solution is implementing a remote work policy that ensures your workplace will stay compliant with applicable law.
While there are many important considerations when deciding about Remote Workplace Agreements in the Entertainment Industry, in this article, we highlight six (6) key considerations for remote work agreements (compensation, benefits, liability, intellectual property, data privacy, and choice of law):
Compensation: Remote work agreements in the entertainment industry should clearly outline the compensation structure for the role, including salary, bonuses, and any other forms of compensation.
Benefits: Remote work agreements should also address benefits, including health insurance, paid time off, and other employee benefits. It's important to clearly outline the benefits offered to remote workers and how they will access them. Certain employees may be entitled to additional benefits depending on their state (for example, some states provide for certain medical leave rights for employees, beyond what is provided under the Family and Medical Leave Act or certain guarantees for sick leave under state and local law).
Liability: Remote work agreements should address the issue of liability, especially in the entertainment industry where intellectual property and confidential information is often at stake. The agreement should outline the responsibilities of both the employer and the remote worker, as well as any insurance requirements. In many situations, an employer may be responsible for carrying workers' compensation insurance in the state in which the remote worker is performing work. There may also be issues about liability as far as where the employee is performing the work (and where an employer may be subject to liability/responsibility) for the employee performing the work. The agreement should outline where the work may be performed and provide certain criteria for the work setting in which the work may be performed as well (for example secure internet, etc) in addition to details in the data privacy portion of the agreement.
Intellectual Property: Intellectual property is a critical issue in the entertainment industry, and remote work agreements should clearly outline who owns the rights to any work produced by the remote worker. This helps to protect both the employer and the remote worker and ensure that the ownership of any intellectual property is clear.
Data Privacy: Remote work agreements should also address data privacy, including the handling of confidential information and data protection measures. In the entertainment industry, where personal information and creative works are sensitive and valuable, it's important to have clear guidelines in place to protect them. To address data privacy considerations, remote work agreements in the entertainment industry should have clear provisions on the protection and handling of sensitive data, such as client information and confidential company information. This may include the use of secure technology and the requirement for the employee to follow the company's data privacy policies. Additionally, companies may require the employee to sign a non-disclosure agreement or confidentiality agreement or provisions as well as a bring your own device (BYOD) policy to further protect company information.
Choice of Law Provision: This is a provision that dictates which law will apply to the work arrangement. In many states (and situations), an employer and employee have the freedom of contract to choose which state (or jurisdiction) will apply to the terms of employment. As we referenced earlier, certain states, like California, may limit an employer's ability to deprive an employee of the benefits of their state's laws. It is imperative that when deciding on a remote work arrangement, the choice of law provision is discussed with a competent employment law attorney. Additionally, the policy should outline where remote work can be performed (going back to liability).
In conclusion, it's crucial for both employers and remote workers in the entertainment industry to seek legal advice when negotiating remote work agreements. The entertainment industry is complex and the agreements must reflect the unique needs and considerations of the industry. An experienced employment lawyer can help ensure that the agreements protect the interests of both parties and comply with relevant laws.
If you have questions about remote work for your employees or would like a remote work policy drafted or need help with an employment agreement, we can help. Contact Wagner Legal today to discuss remote workplace agreements in the entertainment industry.
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