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Playing Chicken With the Law

It’s not the 99-Seat Plan that’s illegal, more likely the union’s new plan to replace it

And this is illegal . . . how?

The clear and present legal danger for the 99-Seat-Theater Plan started in those early, weirdly secret documents circulated by Re-Imagine L.A. Theater – that the California Labor Relations Board was looking into the possible illegality of actors volunteering their performances in 99-seat theaters, and that the actors’ union (Actors Equity Association) would therefore be pressed to discontinue the Plan in order to protect itself from liability. The call was urgent and clarion: Let’s come up with some alternatives before the government, or Equity, does it for us.

One small detail omitted: the Plan was probably never illegal to begin with.

Before getting to that, a word on the law and interpretations of it.

I once had a pet chicken in the tiny Hollywood apartment that I own. Yes, you read that correctly. A pet hen that I hatched from an egg in an incubator, as part of an eccentric project, lived quite happily in a child’s playpen in my living room. I changed her straw every day. Her name was Gwendolen, after a character in a certain play by Oscar Wilde. And yes, she laid eggs. And yes, the hen that eventually replaced her was named Cecily.

Now, Gwendolen had lived outside in the back yard of our condo building (it’s technically a hybrid between a condo and co-op), after I’d gone neighbor-to-neighbor asking permission to house her on the building’s vacant “common ground,” which everyone shares. I got 9 out of 12 votes in my favor, and a pen was built by myself and my supportive neighbors. You could call the vote a membership referendum. One of the neighbors who’d voted against keeping the hen there wouldn’t accept the vote’s result, and called the city’s Department of Animal Services, which came by and determined that Gwendolen’s home violated Municipal Code Section 40.03, which bans chickens “within 20 feet of the dwelling or residence of the owner and within 35 feet of any other residence.”

The law’s the law.

So that’s why I moved Gwendolen to inside my own apartment. I even got her a health certificate from a veterinarian, an avian specialist in Santa Monica. This was actually a letter on the vet’s stationery claiming that if a chicken’s pen is cleaned daily, like a cat box, the existence of a chicken inside an apartment poses no threat to the health or safety of the owner or neighbors – pretty much addressing the health concerns being raised by my hostile neighbor. The guy just didn’t like chickens. More to the point, he didn’t like me.

He’d been rattling on about avian flu and chicken feces, when in fact it’s impossible for avian flu to be contracted by an indoor chicken, and domesticated cats poop indoors all the time without dire impacts on their owners or neighbors. Just clean up, and all is well. Still, the guy continued complaining to the city.

I figured once the bird was inside my home, providing she was causing no harm, she was nobody’s business but my own. I petitioned in a city hearing (with the veterinarian’s letter in hand) that the ordinance’s phrase “within 20 feet of” referred to a zone starting from the building’s perimeter and extending outwards to 20 feet – a very different concept from “within” my apartment. The city agreed. They told my angry neighbor that my chicken was a harmless pet and that he should bug off.

This sent him into an even hotter rage. (Sound familiar?) He renewed his prosecution by complaining to the L.A. County Health Department. The county has an identical law pertaining to the distance restrictions of barnyard poultry from dwellings. Once again, I was called into a hearing, this time in the Health Department offices, accompanied by the HOA president who vouched for my character. (I figured I needed all the help I could get, under the circumstances.) We took all the documents from the HOA, and from the city, and I said, “See, the HOA and the city have already made a determination in my favor.” The administrator said, “Yes, but we’re not the city, we’re the county.”

“So you’re telling me that the HOA, the city and the county, which all have dominion over the measly 600-square-feet of my home, can interpret in opposite ways a single law concerning what I’m allowed to do inside my home?”

“Yes, that’s possible,” she replied.

“Well, obviously, if the county rules against me, this is going to court for a judge to decide. Do you really think it’s a prudent use of county resources to go to court, to challenge me, my HOA and the city over a pet chicken?”

“I personally do not think that’s a good use of resources,” she droned. “But that’s up to our legal department to decide.”

Two weeks later, I received a voice mail from the administrator that the county had decided “not to pursue this matter any further” – the larger point being that we presume that the law’s the law, but if that were really so, there wouldn’t be any need for lawyers.

L.A. theater’s highest and best use: as an incubator

Back to the alleged illegality of professional actors volunteering in 99-seat theaters. There are both state and federal labor laws that address the issue of volunteering in non-profit organizations.

According to the L.A. County Bar Association, in non-profit organizations, state law “allows for unpaid volunteers [expense reimbursements of up to 20% of an equivalent wage are also permitted], but only when the services are for humanitarian, public service, or religious reasons.”

If challenged, it could be argued that acting in money-losing theaters meets the criterion of public service and possibly religious reasons (if acting is a “calling,” as many actors and theater historians have written). It would almost have to be interpreted that way, or every community theater in every large city and small town across California would be compelled to shut down for illegally using volunteers. Banning volunteers just in L.A.’s 99-seat theaters would appear to be discriminatory and therefore illegal.

Pierce Law Group, LLP in Beverly Hills weighs in further with state labor law, in which the 99-seat theaters should also take comfort. It’s under a section called Volunteers and Interns.

“An individual who qualifies as a volunteer is not an ‘employee’ and therefore not subject to wage-hour laws. The issue of whether someone is a volunteer arises in 2 situations: (1) where the individual has never been an employee and all of the individual’s work for the organization has been without compensation solely for his/her personal purpose or pleasure, and (2) when an employee volunteers to perform services during his/her off hours without expectation of compensation in an effort to help a financially strapped employer.”

Situation (1) sounds a whole lot like the 99-Seat Plan to me.

Pierce Law Group then goes into much the same territory as the L.A. County Bar Association.

“A bona fide ‘volunteer’ is one who intends to work without contemplation of any pay for his or her services for (1) public service, (2) religious, or (3) humanitarian objectives, and the individual must not be a regular employee of the religious, charitable, or similar non- profit corporation which receives the services. The decision to work without contemplation of pay must be the clear voluntary choice of the individual and coercion must not be present. Alamo Foundation v. Secretary of Labor (U.S. Supreme Court, 1985) 85 L.Ed.2d 278; see also, California DLSE Operations and Procedures Manual sections 224.10-11.

Fair enough, so “public service,” “religious” and “humanitarian objectives” are up for a judge’s interpretation and misinterpretation, perhaps guided by the precedent of case law, though I can’t find a single case of a community- or 99-seat theater having been sued or investigated for merely using volunteers.

There is, finally, the stipulation that a volunteer cannot perform a task that might otherwise be performed by an employee, which is where the “actor exception” being bandied about on Deadline Hollywood comes into play, and where Equity’s proposed membership rule brings us all the way home in an ironic loop de loop, or call it the chicken chasing her own tail.

This is the stipulation that bans any actor, union or not, from volunteering as an actor at the Mark Taper Forum or the Kirk Douglas Theatre or the Pantages, or any theater that pays actors wages. This ban has nothing to do with the union, it has everything to do with labor law: Volunteers can’t replace the jobs done by paid employees.

However, volunteering as an actor under the current 99-Seat-Plan does not replace work that might otherwise be done by a regular employee, since there are no regular employees who act. All the actors are working pro bono, motivated by their own benefit in doing so, for their own pleasure. Is that not an entitlement worth protecting? What evidence is there that the existence of L.A.’s 99-Seat theaters, beloved by so many union actors working there pro bono for variegated reasons, are stifling contract opportunities elsewhere? 

Protecting the membership

In the union’s new proposal, under the members’ self-producing option in theaters of up to 99-seats, the union says its actors are free to produce their own shows, but without a union contract and without the benefit of any association with a non-profit theater. In other words, the producing union actors have to pocket all the rental and production costs themselves with no union protection, and almost no legally protected right to use volunteers.

Under federal and state labor laws, the only circumstances under this provision, in which actors would be permitted to work for less than minimum wage, would be if the production did not charge for tickets, and accepted donations instead. The thing about working with a non-profit theater is that volunteering is almost always legal, if nobody else is getting paid to do the same job.

Which brings us to the new membership rule being promulgated by the actors union, in which membership companies are mandated to pay new company members at least minimum wage for rehearsals and performances. Enter stage right the employee on a stage formerly occupied by volunteers. Even before Scene 1 of the first show is rehearsed under this membership company “option,” federal and state labor laws expressly forbid volunteers (i.e. the veteran company members who have been working with these companies for decades and whose names are being held in escrow until this gets sorted out) from performing tasks that could be performed by a regular employee, i.e. any new company member, real or imagined.

Essentially, the union proposal, now being voted on in a member referendum, transforms membership companies as they currently exist from legal entities into what look like illegal ones. What’s so insidious about the whole thing is the way the union then removes itself from any liability for the mess that it alone is creating, then passes that liability on to its own members, under the guise of, “Hey, we’re just letting them do what they said they wanted.”

I don’t know if this is simply spite, but one thing is clear, the union has always hated the 99-Seat Plan in Los Angeles, and doesn’t want anything more to do with it. There are nonetheless more constructive and creative ways to fund, administrate and improve the Plan, if that’s what the local union members say they want, and if the union has any interest in taking them seriously and actually representing what they say are their interests.

A “Yes” vote on the union’s current proposal provides a mandate to essentially rip up the Settlement Agreement of 1989, which is why the union is campaigning so hard for it — so they no longer have to talk to the local Review Committee about their plans for local theater. At the very least, a “No” vote raises the possibility of alternate proposals being considered by the various factions affected by these changes  — proposals already raised by union members and producers alike — all so far rebuffed by Actors Equity Association.

As the chickens said to the meat packer in the slaughterhouse, “We want change, just not this change.”

See here, for more on this issue.