State Labor Commission Ruling Defends Volunteerism in Some Theaters

By Steven Leigh Morris

A ruling by the California Labor Commission (Department of Industrial Relations) underscores the legality under State law of producers using volunteer stage actors in some circumstances.

The ruling by Hearing Officer Donald Banks refutes claims made by representatives of the now defunct “Re-Imagine L.A. Theater” campaign that all producers using volunteer actors could be in violation of State law. This claim was also one pretext used by the national actors’ union (Actors’ Equity Association) to shut down the volunteer-based 99-Seat Theater Plan in Los Angeles, which was based on a combination of volunteerism and stipends. Even so, the union continues to permit volunteerism in some of its exceptions to its new rules that were first implemented in 2016, and which are based on minimum wage payments to actors for rehearsals and performances. For example, the union’s “Membership Company” exception permits its members to volunteer, even without requiring stipends that were mandated under the 99-Seat Theater Plan.

The November 7, 2017 ruling by the Labor Commission came in response to a complaint filed earlier that year by actor Dolores Quintana (via her representative David Mack) against co-defendants/producers Matt DeNoto and Kathryn Mayer. (Stage Raw quarantined news of the ruling until now, at DeNoto’s request.)

Quintana performed in DeNoto’s play La Llorona for four performances at Theatre of NOTE in the 2015 Hollywood Fringe festival. Her claim, two years after the fact, was for slightly over $2,000 for back-wages and penalties for unpaid wages, at a rate of the 2015 minimum wage of $9/hour, for rehearsals and performances.

At a hearing on June 5, 2017, Quintana claimed that the audition notice failed to mention the word “volunteer.” (It did specify the pay rate as “none.”) Other actors in the show (Abel Horwitz and Jahel Caldera) testified in that hearing that they understood clearly that they were volunteering. DeNoto paid all of his actors a stipend for their participation.

It appears that the case was filed by Mack and Quintana to test the legality of stage actors volunteering under any and all circumstances in California. A ruling in favor of the plaintiff could have had a suffocating effect on non-Equity stage productions as well as the union-sanctioned Membership Company productions in Los Angeles. The heart of the ruling was Banks’s insistence that under some circumstances stage actors volunteering their time and labor to perform is legal.

Wrote Banks: “A volunteer is one who donates his or her services to a religious, charitable, or similar non-profit organization without contemplation of pay for public service, religious or humanitarian objectives. In determining whether a person is a volunteer, the two main factors to be considered are the nature of the entity to whom the services are being provided, and the intention of the parties regarding the nature of their relationship. Defendants operated a non-commercial, likely not-for-profit, enterprise consisting of community theater. Defendants are precisely the type of entity to whom individuals may donate their time on a volunteer basis, without expectation of compensation.”

Banks awarded Quintana the total sum of $0.00. Without an appeal to a civil court – which would have to have been filed within 10 days of the December 12, 2017 notification of the decision — the ruling has the effect of law.

A related Labor Commission case filed by actor Ann Colby Stocking (also represented by David Mack) against the Odyssey Theatre in April, 2016 remains “under legal review,” according to the Department of Industrial Relations Information Officer, Lucas Brown. In that case, Stocking and Mack filed for wages and penalties owed for a play in which Stocking appeared three years earlier (July, 2013) under the union’s 99-Seat Theater Plan, which permitted the terms under which Stocking performed. The Odyssey Theatre’s Artistic Director Ron Sossi has said that all the actors in that production, including Stocking, signed a written acknowledgement before rehearsals began that they were volunteers under the 99-Seat Plan. Stocking claims that she is entitled to $2,300 in back wages, minus the $300 she was paid in stipends.

*Full disclosure: Re the DeNoto case, shortly before the July hearing, I filed a Friend-of-the-Commission letter as Executive Director of LA STAGE Alliance, urging that, “If a volunteer performer in a community theater or fringe festival context can prevail in a claim of back-wages, years after the performance, that decision would challenge the legality of community theaters and fringe festivals state-wide.”