The Entertainment Industry and Wage and Hour Laws: The Legal Dish
Are workers in the entertainment industry subject to different wage and hour laws than anyone else?
First, let's start with the basics.
In the United States, wage and hour laws fall under a regulation called The Fair Labor Standards Act (FLSA). The FLSA is a federal law that establishes minimum wage, overtime pay, and other labor standards for certain employees in the United States.
Unless an employee falls under an exemption of the FLSA, employees covered by the Act must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half (1.5x) their regular rates of pay. For example, under federal law (FLSA), an employee who is paid $15.00 per hour and works 41 hours in a workweek must be paid $22.50 ($15 multiplied by 1.5, 15x1.5) for the one hour in the workweek that they worked over 40.
Some employees are exempt just from the FLSA's overtime pay provisions and some employees may be exempt from both the minimum wage and overtime pay provisions. Which employees fall within these exemptions?
There are quite a few potential exemptions under the FLSA, including specific exemptions for categories like farm workers and casual babysitters. But specific to the entertainment industry, we outline the top exemptions that may be relevant, based on language found from the U.S. Department of Labor:
Exemptions from Both Minimum Wage and Overtime Pay Relevant to the Entertainment Industry
Employees of certain seasonal amusement or recreational establishments, employees of certain small newspapers, and employees engaged in newspaper delivery;
In addition, under federal law, "highly compensated employees" performing office or non-manual work may be considered exempt from overtime if they meet the salary basis test; their total annual compensation level is at or above the government-set threshold (currently an annual compensation of $107,432 or more, which includes at least $684 per week paid on a salary or fee basis); and they customarily perform one of the duties of an executive, administrative, or professional employee. Note: the highly compensated employee exemption is not recognized in California.
🌟There is a special caveat to this criteria under the FLSA for individuals in the "motion picture industry." (see the "FLSA Motion Picture Exception" below)
Exemptions from Overtime Pay Only (Relevant to the Entertainment Industry)
Announcers, news editors, and chief engineers of certain non-metropolitan broadcasting stations;
Employees of motion picture theaters (this exemption was added to the FLSA in 1967 and has been the subject of recent debate with the changing nature of theaters. For examples, see 2018 Opinion Letter from the Department of Labor on the topic of the motion picture theater exemption and subsequent articles on the same).
🌟The FLSA Motion Picture Exception🌟
The Motion Picture exception is a provision of the Fair Labor Standards Act (FLSA) that allows individuals who would otherwise fall under the executive, administrative, or professional employees exemptions to remain under that overtime exemption even if they do not meet the traditional criteria.
Created to recognize the unique nature of the motion picture industry, which often requires employees to work long and irregular hours, this exception provides that an individual does not need to be paid on a salary basis to qualify for the executive, administrative, or professional exemptions, as long as they meet the other requirements. In other words, if individuals meet the criteria of the motion picture industry exception , those individuals are not entitled to receive overtime pay for hours worked in excess of 40 hours per week, as long as they are involved in the production of a motion picture.
So who falls under this exception?
First, note that the exception is narrowly defined and only applies to certain employees in the industry. These employees include those who are involved in the production of a motion picture, like actors, directors, producers, and crew members or other workers involved in the production process. The exception does not apply to other employees in the motion picture industry, such as office or support staff or employees in other industries, like television or theater, or to employees who are not directly involved in the production of a motion picture. In addition, the exception does not generally apply to employees who work for companies that distribute or exhibit motion pictures.
To qualify for the exception, an employee must be employed by a motion picture producer and must be engaged in the production of a motion picture for a minimum of 7 days in any 30-day period.
Keep in mind, the exception does not allow employers to pay their employees less than the minimum wage required by the FLSA.
There are some limitations to the FLSA's motion picture exception. For example, it only applies to employees who are engaged in the production of motion pictures that are intended for commercial distribution. And again it does not apply to employees who are involved in the production of television programs or other types of media. Additionally, the exemption only applies to employees who are working on a film or television production that is being produced by a legitimate film or television production company. It does not apply to employees who are working on productions that are being produced for personal or non-commercial purposes.
Also, note that the FLSA is federal law. Some states, such as California, have stricter wage and hour regulations than what federal law provides. Employers with employees working in those states will need to ensure compliance with that state's law.
This is usually true regardless of whether the individual is a "resident" of the state as well as whether the employer has an office in the state. For example, a producer who travels to California to scout a filming location in the state may be protected by California wage and hour laws for the time the producer conducts work in the state, regardless of whether the employer is otherwise operating in California and even if the producer is a resident of another state. We will explore more about California's laws specific to the entertainment industry in a bit.
Before we get there, let's examine another exemption to the FLSA overtime regulations: the creative professional exemption.
The FLSA's Creative Professional Exemption
The FLSA's Creative Professional Exemption is determined by conducting a fact-specific examination into the specific nature of the work performed by the individual.
Under federal law, to qualify for this exemption, the employee must be compensated at least $684 per week (on a salary or fee basis) and the employee’s “primary duty” must be the performance of work that requires invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.
Under California law, the standard for the creative professional exemption is slightly different. California requires that the individual:
(1) receive a salary of no less than two times the state minimum wage for full-time employment (in 2023, amounts to $64,480 per year),
(2) spend more than 50% of the time performing work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor, and
(3) regularly exercise discretion and independent judgment in the performance of the job duties.
To determine if an individual meets the criteria for this exemption, we look to the extent of the invention, imagination, originality, or talent that the individual exercises in their actual job. As an example, a TV or Motion Picture writer might not meet the criteria if their work is subject to constraints on the creative aspects of their work, such as how they are to write. Conversely, a writer who is given creative flexibility to write original stories may meet the exemption.
More California Specifics
For example, like the FLSA, California has a motion picture industry exception in its wage and hour regulations. The “Motion Picture Industry” is defined under California law as “any industry, business or establishment operated for the purpose of a motion picture or television film production, or primarily allied with theatrical or television, motion picture productions, including but not limited to motion pictures for entertainment, commercial, religious, or educational purposes, whether made by film, tape, or otherwise.” 8 Cal. Code of Regulations § 11120(2)(K).
While California's regular overtime regulations generally apply to those in the motion picture industry (which include 1.5 times the regular rate of pay for work in excess of 8 hours in a workday or 40 hours in a workweek, and for the first 8 hours worked on the 7th day of work in any one workweek), there are certain exceptions as well as special requirements for those in the entertainment industry, including:
Professional actors: Professional actors are exempt from California overtime laws. 8 Cal. Code of Regulations § 11120(1)(C).
Background Actors (extras or extra players): Background actors may be subject to special wage and hour regulations. Background actors may be those in a motion picture, television show, music video, or commercial whose involvement does not include any speaking lines. 8 Cal. Code of Regulations § 11120(2)(G). The regulations define an “Extra Player" as “any person employed by an employer in the production of motion pictures to perform any work, including but not limited to that of a general extra, stand-in, photographic double, sports player, silent bit, or dress extra; or as extras employed in dancing, skating, swimming, diving, riding, driving, or singing; or as extras employed to perform any other actions, gestures, facial expressions, or pantomime.” Extra Players who work more than eight (8) hours in a workday or forty (40) hours in a workweek, are to be paid overtime “computed in units of one-tenth (1/10) hours” or 6-minute units. 8 Cal. Code of Regulations § 11120(3)(D)(1). As most Extra Players are not generally paid an hourly rate, their regular rate of pay for purposes of calculating their overtime rate is “determined by dividing the amount of the weekly salary by the number of regular hours in a workweek.” 8 Cal. Code of Regulations § 11120(3)(D)(2). Note that under the regulations, Extra Players are not entitled to overtime for the first eight (8) hours worked on the seventh (7th) day of a workweek unless they have already worked in excess of forty (40) hours in a workweek.
Minors: First, under California law, all employers seeking to employ a minor (under the age of 16) for work in the entertainment industry must get written consent from the California Labor Commissioner by obtaining a work permit (depending on the age of the minor and the nature of the activity). Cal. Labor Code § 1308.5. As to wage and hour regulations for minors, for all hours worked on the 6th consecutive day, minors must generally be paid 1.5 times their regular rate of pay. As an example, if a minor works between Monday and Saturday, then for their work on Saturday (the 6th consecutive day), they must be compensated for 1.5 times their regular rate of pay for all hours worked on that day (even if the minor does not work more than 8 hours on any of the workdays or more than 40 hours in the workweek). California's entertainment industry provides additional restrictions on employment of minors, including that they shall not be employed in the industry more than 8 hours in one (1) day of 24 hours, more than 48 hours in one (1) week, or before 5 a.m., or after 10 p.m. on any day preceding a school day. Cal. Labor Code § 1308.7. Note that the definition of “Entertainment industry” under California law is broad and includes theatrical films, television programs in any medium; photography; recording; modeling; theatrical productions; publicity; rodeos; circuses; musical performances; advertising; “and any other performances where a minor performs to entertain the public.” Cal. Labor Code § 1286(f). Special restrictions apply to the use of infants under the age of one month. Cal. Labor Code § 1308.8. And lastly, fifteen (15) percent of a minor’s gross earnings from an entertainment industry contract must be placed in a trust account and preserved for the benefit of the minor. Cal Family Code §§ 6700-6753; Cal. Labor Code § 1308.9.
And then, like nearly all other working industries in California, employers in the entertainment industry must abide by California's meal and rest break regulations. California maintains a Wage Order specific to wage and hour regulations of the Motion Picture Industry, which can be found here. Recall that California regulations define Motion Picture Industry as " any industry, business, or establishment operated for the purpose of the motion picture or television film production, or primarily allied with theatrical or television, motion picture productions, including but not limited to motion pictures for entertainment, commercial, religious, or educational purposes, whether made by film, tape, or otherwise."
We highlight some specifics, as follows:
Meal Periods
As it relates to the Motion Picture Industry, California law provides that “no employer shall employ any person for a work period of more than six (6) hours without a meal period of not less than 30 minutes, nor more than one (1) hour.” The meal period must be 30 minutes. Employees are entitled to subsequent meal periods not later than six (6) hours after the end of the preceding meal period.
Under the California Code of Regulations, "if an employer fails to provide an employee a meal period...the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided." But note that in film production, the cost of a meal penalty may be determined by the crew member’s individual union, such as SAG-AFTRA's specific provisions.
Rest Periods
Like workers in other industries, Motion Picture Industry workers are entitled to 10 minutes net rest time every four (4) hours.
Relevant to the Motion Picture Industry, there is also a requirement that “Swimmers, dancers, skaters, and other performers engaged in strenuous physical activities shall have additional interim rest periods during periods of actual rehearsal or shooting.” 8 Cal. Code of Regulations § 11120(12).
Note that certain union contracts may require workers in certain categories to have at least a certain amount of rest during each hour of actual rehearsal or shooting.
Like federal law, to qualify for the Motion Picture Exemption under California law, an employee must be employed by a motion picture producer and must be engaged in the production of a motion picture for a minimum of 7 days in any 30-day period. And like federal law, the exemption applies to employees who are involved in the production of a motion picture, including actors, directors, and crew members.
Other California Wage and Hour Laws that May Impact the Entertainment Industry
Workers may work up to sixteen (16) hours in any one (1) day and only up to sixteen (16) hours in any one (1) day, including meal periods, as long as they are paid overtime pursuant to California law. 8 Cal. Code of Regulations § 11120(3)(A)(1)(a).
Hot Meal and Drink Requirement
“Hot meals and hot drinks shall be provided for employees who are required to work after 12 o’clock midnight, except off-production employees regularly scheduled to work after midnight.” See 8 Cal. Code of Regulations § 11120(3)(G).
When are Workers Entitled to Transportation Accommodations?
“When employees are required to work at night and are not dismissed in time to permit their return to their homes by public service transportation, transportation shall be provided by the employer.” See 8 Cal. Code of Regulations § 11120(3)(H).
Workers are Entitled to Payment of Wages Upon Termination of Employment
A worker “whose employment terminates is entitled to receive payment of the wages earned and unpaid at the time of the termination by the next regular payday.” California law provides a special provision for the Motion Picture Industry and Print Shoot employees where employers may pay the laid-off or discharged employee by mail, at the employer's discretion. See Cal. Labor Code §§ 201.5, 201.6.
How Soon Can a Shift Begin After the Prior One Ends?
“No employee shall be required to report to work unless ten (10) hours have elapsed since the termination of the previous day’s employment.” 8 Cal. Code of Regulations § 11120(3)(F).
Independent Contractors vs. Employees
Remember, in California as well as under federal law, only individuals classified as "employees" are subject to these wage and hour laws. However, in California, with the passage of AB5 in 2020 (codified as California Labor Code Section 2780), classifying workers as independent contractors carries a heavy burden. Unlike federal law (and many states), California examines whether an individual is an employee or independent contractor by utilizing a test known as the "ABC" test.
The ABC Test
Under the ABC test, a worker is considered an employee and not an independent contractor, unless the hiring entity satisfies all three of the following conditions:
The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
The worker performs work that is outside the usual course of the hiring entity’s business; and
The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
To understand what these three elements mean in practice, visit the California Labor and Workforce Development Agency's site, where they provide guidance on these conditions based on the California Supreme Court explanation.
Exemptions and Exceptions to the ABC Test
As it relates to the entertainment industry, AB5 provides certain parameters for specific job categories to be classified as independent contractors (exemptions from the ABC Test).
One of these exemptions is the Freelance Writers and Editors exception, which covers freelance writers, editors, translators, copy editors, illustrators, newspaper cartoonists, still photographers, photojournalists, videographers, and photo editors who:
work under a written contract that specifies the rate and time of pay
do not directly replace an employee who performed the same work at the same volume for the hiring entity, and
do not primarily perform the work at the hiring entity's business location (this exclusion is not applicable to still photographers, photojournalists, videographers, or photo editors who work on motion pictures).
In addition, individuals who provide content for a journal, book, periodical, evaluation, other publication, or educational, academic, or instructional work in any format or media qualify as independent contractors as long as:
they work under a written contract specifying the rate and time of pay and intellectual property rights
their services do not directly replace an employee who performed the same work at the same volume for the hiring entity, and
they do not primarily perform the work at the hiring firm's business location.
Individuals in the music industry may fall within AB5's music industry exemption, which involves individuals who create, market, promote, or distribute music, including:
recording artists
songwriters, lyricists, composers, and proofers
managers of recording artists
record producers and directors
musical engineers and mixers
musicians engaged in the creation of sound recordings
photographers working on recording photo shoots, album covers, and other press and publicity purposes
independent radio promoters, and
any other individual engaged to render any creative, production, marketing, or independent music publicist services related to the creation, marketing, promotion, or distribution of sound recordings or musical compositions.
Also potentially relevant to the entertainment industry, AB5 provides an exception for "single engagement events," which may include DJs or musicians who provide services at a single location event (a stand-alone, non-recurring event or series of events in the same location no more than once per week). Individuals may fall within the Single Engagement Event exception if they meet the following criteria:
not work under the hiring firm's control
have a written contract specifying payment
have a separate work location (which could be a residence)
provide his or her own tools, vehicles, and equipment
have any required licenses, and
be able to contract with other businesses to provide the same services.
In conclusion, if you are a professional in the entertainment industry with wage and hour questions or if you are an employer in the entertainment industry needing legal advice as to wage and hour laws for the industry, Wagner Legal can help. We offer consulting, contract drafting, and review, as well as other legal services. Contact Wagner Legal today for a consultation.
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