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Not Getting Overtime

An anonymous reader writes in:

I’ve just been told my show doesn’t have the budget to pay for OT, even though I’ve already had an hour and a half of it. The producer claims that no one gets OT.

Even worse, my call time was 7:00 am to load gear and such from the rental place, but we didn’t arrive to set until 8:30 am. So the producer is claiming on paper our call was at 8:30 am, in which case, we wouldn’t be over 12 hours anyway. I’ve never heard of this before. Any thoughts?

Oh, so many thoughts.

First of all, I’m pretty sure1 California labor law says they must pay you overtime, unless you’re a salaried employee (with benefits and such), or a union worker whose union has negotiated away that right.2

That being said, this is not uncommon in the low-budget world. It’s called a flat rate. Better than “intern PA,” but not much. On a show of the size Anonymous mentioned in his unredacted3 email, this is not common practice and probably not okay on the same level as Black Swan interns doing PA work for Fox wasn’t okay.

If this is what you’d agreed to, however, I’d say you made your flat rate bed, now you have to sleep in it.

Except you hadn’t agreed to this. That’s not cool, either. We all go in with basic assumptions: the day will last twelve hours; we get fed at lunch;the AD will yell at someone; we shoot within the 30 mile zone; after twelve hours, we get overtime. Any deviation from these expectations should be agreed to in advance of shooting.

Unfortunately, as a PA, you’re not really in a position to argue. If you kick up a stink, you can be replaced, quite easily. There are plenty of qualified PAs who want your job. Even worse, it’ll be that much harder for you to find another job, because of the aforementioned glut of PAs.

Even worse is this call time situation. Let me be clear: your call time is the time you begin doing work for the show. If you have to be somewhere, anywhere, even if it’s not the location, at a specified time, that. is. your. start. time. Period, the end.

If you have to pick up doughnuts for the big meeting, the moment you arrive at the doughnut shop is your start time. If the producer wants you to stop by his house on your way in to pick something up he forgot, when you ring the doorbell, that’s your start time. And if you are loading equipment into a truck the day of the shoot, guess what? That is your start time.

But if you’re working for a flat rate, well, the point is moot.

And so we come to the question that we face we more often than we should in this business: Is it worth it? The shitty pay, the lack of overtime, the unscrupulous producer, the working conditions that will undoubtedly deteriorate?

Here’s some more questions: Do you need the money? Is this a bridge you’re willing to burn? Do you have another job to run to? Do you have enough savings to live on if you don’t?

Because I don’t know Anonymous’s specific situation, I can only offer general advice, which is this: keep the job, unless you have another one lined up. The corollary to which is: look for another job. In between setups or when you’re on a run, search the job sites for other work. Email your contacts, tell them you’re available.

This producer does not care about you. Don’t care about him in return. If you find a job, jump ship. If it leaves him in the lurch, all the better, because fuck him.

But if you don’t find another job, or until you do, keep doing the best you can on this show. Even though the producer is an asshole, not everyone else is. It’s worth demonstrating to the world that you’re the best PA around. And if they remember you in the future, they’ll also remember the shitty working conditions on this show, and remember that you were a trooper. That’s an impression worth leaving.

Footnotes    (↩ returns to text)

  1. I can’t find a citation for this. If anybody can, please let me know in the comments below.
  2. Why would anyone want to negotiate away from overtime? I have no idea. Ask the coordinators’ union.
  3. If you have a question for me, but are afraid that even asking it publicly could lead to trouble in your workplace, don’t worry. I will cut out any identifying information; I’ll even change stuff around, to make the situation more generally applicable to readers, and less traceable to you.
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6 Responses

  1. Flat rates may even be illegal, depending on how many hours you actually work and whether or not it equals to at least minimum wage. I actually wrote a post on this a little while ago. Different departments and whatnot, but hopefully it might be helpful:
    http://thehillsareburning.blogspot.com/2011/11/know-rules.html

    And the fact that 8:30 counts as your start time because that’s crew call is absolutely absurd.

  2. When stopping by a coffee shop/grocery store/baker/wherever first thing before you get into the office, be sure to write down the mileage from that place to the office since it’s counted as your start time.

  3. Wage & theft violations are rampant and are, unfortunately, of the norm in the entertainment industry, especially with smaller companies. Fair Labor laws explicitly state that if a non-exempt employee works over 40 hours in a week, the employer is required to legally pay you no less than 1.5x the regular rate for any time over 40. When it comes to fluctuating work weeks and flat rate pay, there are ways to determine what the employee’s regular rate is. In either case, the employer is legally obligated to pay overtime. So much, in fact, that labor lawyers love overtime cases because the law is very clear when it comes to overtime pay. The only way PAs are not allowed overtime pay is if they are “exempt”, which PAs aren’t, or if they are getting paid with a 1099 (as an independent contractor), which PAs shouldn’t be receiving, because if the employer is controlling where, how, and when you work, then you are most likely an employee, and not an independent contractor. And if you started working at 7:00am, that is legally your “start time” (including traveling time to another destination), regardless of what it says on paper. So your options are (that is if you spoke to them first, and they refuse to pay you overtime):

    (1) You can file a a wage claim with the California Labor Commissioner: http://www.dir.ca.gov/dlse/HowToFileWageClaim.htm
    (2) You can get a labor lawyer to look at you case. For overtime, most will work on a contingent basis, i.e. you don’t pay them unless they win your case. Usually, they get paid 25-35% of what you receive. Also, in comparison to filing a wage claim with the Labor Commissioner vs. a labor lawyer, labor lawyers can possibly get you double damages, among other things.
    (3) You can file a complaint with DOL. There are ways to do it anonymously.
    (4) Do nothing!

    In the first two options, since you are reporting their illegal activity, you would be protected under Whistleblower laws, i.e. the employer cannot legally retaliate against you; however, I’m not sure how Whistleblower laws hold up when it comes to “bridges being burned”, and working in an uncomfortable environment, etc.. Good luck with whatever you decide!

  4. Call the CA Labor Commisioner’s office and ask them all your questions:
    https://www.dir.ca.gov/dlse/DistrictOffices.htm

    The real question is whether or not they are in violation of law is how you are classified: are you an ‘independent contractor’ or an employee? The short version: are you 1099 or W-2? If you get taxes taken out, you are a W-2 employee and they are in violation of law. You need to report them here: http://www.dir.ca.gov/dlse/HowToReportViolationtoBOFE.htm

    You WILL get other jobs, just not for these a-holes.

    There is a reason these departments exist. Some industry folks like to pretend the laws don’t apply to them (by intimidating the new or uninformed), but they absolutely do.

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