“Payment on an Unpaid Basis”

Charles Davis   October 01, 2014
Photo by Alan Muszynski

Photo by Alan Muszynski

“Payment is on an unpaid basis,” is a sentence that should not exist. It’s a linguistic offense, but also a legal one: zero dollars an hour is well below the minimum wage in all fifty states. Unless the employee is a child working fourteen hours a day on a farm, an employee’s payment must be in the form of actual pay. If you are looking for a gig in the entertainment industry, however, you’re bound to come across ads for “jobs” where the payment is nothing at all.

The awkward phrasing may be new, forced on companies by the constraints of a popular entertainment-industry job board on Mandy.com, but the phenomenon of not paying people for their work in the television and film industry goes back years. The perceived glamour of Hollywood has long allowed companies to exploit the labor of desperate but fairly privileged young people by convincing them to accept “experience” and “networking opportunities” in lieu of dollars and cents.

But in 2013, the industry was put on notice when a federal court ruled that those who had worked as unpaid interns on the 2010 film Black Swan could sue Fox Searchlight Pictures for back wages. “Searchlight received the benefits of their unpaid work,” ruled Judge William H. Pauley III, “which otherwise would have required paid employees.” Since the unpaid labor displaced workers who would have been paid, the court found the internships in violation of federal and New York minimum wage laws.

Fox is appealing the decision, but in the wake of that ruling, many companies have had to start considering whether the money saved with unpaid labor is worth the potential cost of a class-action lawsuit. It’s led to some changes, but cultures don’t change overnight—unless an unpaid laborer wants to burn the bridge that they are laboring away for free to build, he or she is not likely to go the litigious route. So the culture of impunity continues.

If you search Mandy.com for the phrase “payment is on an unpaid basis,” you’ll find dozens upon dozens of opportunities to work as a film editor or a production assistant or even a puppet master where all that’s offered is the ability to add a credit to one’s IMDB page and maybe get a complimentary DVD of the production. The story’s the same everywhere. In late July, for instance, the United Talent Agency in Hollywood sent its members a list of more than one hundred job opportunities, a quarter of which were for positions described either as “unpaid” or as requiring employees to receive academic credit—which is typically code for unpaid. “Experience” is what people are increasingly being paid with—it’s a twenty-first-century currency that can be used to buy future “opportunities,” if not food and housing.

A screenshot from the job-listing site Indeed.com

A screenshot from the job-listing site Indeed.com

Want to work on “an award show by geeks for geeks”? Probably not. But if you do, “The Geekie Awards” is looking for production assistants and interns to help with all aspects of the show, from obtaining legal releases for video clips used during the ceremony to marketing the program on social media. Tickets for the live taping cost anywhere from $75 to $325, but for interns and production assistants, it’s only a “great opportunity to build your brand,” not a way to pay the rent.

There are “opportunities” for basketball nerds too. “Showtime documentary about Kobe Bryant was looking for Archive Interns to assist in the research process,” according to a job listing posted by Dirty Robber, a production company helping make the film, Kobe Bryant’s Muse, directed by Gotham Chopra (son of Deepak). “This is a full-time, three-week commitment starting as soon as possible,” the listing added. “Unfortunately it is no-pay.” Unpaid employees would, however, get the chance to add “a high-profile documentary” to their IMDB page.

Experience and bragging rights aside, why weren’t they being paid in actual dollars? That’s what I asked a spokesperson for Showtime, who told me over the phone that the network does not condone unpaid labor, and never has. After I brought the ad for unpaid interns to her attention, she told me in a follow-up conversation that the network had acted swiftly, reaching out to the production company to get answers. According to Showtime, Dirty Robber said that the ad was an error, deleted the posting, and promised that all interns who were already brought on to the production would be paid.

Showtime has an incentive to quash any labor violations by its third-party production companies, not just because it makes for bad press, but also because it could be held legally liable for those violations. In the Black Swan suit, Fox Searchlight insisted that the movie’s stable of interns hadn’t really worked for the studio at all; rather, they “were working for the production company that made Black Swan.” Sue the production company if you must, Fox Searchlight was trying to say, but it’s not our problem. That argument didn’t work. As the company that owned the rights to the film and therefore stood to profit from its distribution, the court found Fox Searchlight liable for the labor conditions of the employees involved in its production.

It’s entirely likely Showtime had no idea that the production company it was paying to produce a documentary was not paying all of its workers. And Showtime itself never advertised for any unpaid gigs. Big networks will often give small production companies budgets to produce a final product, but generally won’t provide much in the way of oversight when it comes to how that budget is actually spent. So even if the big entertainment company swears off unpaid labor, there’s no guarantee that a smaller firm won’t try to get away with it. After all, the more you end up spending on wages for low-level staff, the less you’ll be able to spend on other things, like wages for senior staff.

Sometimes, in these cases, all that’s needed to fix the problem is a little exposure: rat out the production company and one just might get some change. So I tried that with Abso Lutely Productions after I saw that it was looking for “art department interns” to work on Hot Package, a television show that airs on the Adult Swim television network. According to the ad, interns are expected to work “a minimum of 12 hour days,” at least three days a week. The reimbursement: An “amazing opportunity to get hands-on experience,” plus lunch and snacks—and nothing else.

I wrote to a spokesperson at Adult Swim, which is owned by Turner Broadcasting, to ask about the ad. “It is Turner’s policy to pay our interns,” I heard back. “We cannot comment on the practices of Abso Lutely Productions.”

And so I reached out to Abso Lutely itself, to see whether Adult Swim may have come down on the smaller production company, which was founded by Adult Swim stars Tim Heidecker and Eric Wareheim. Almost immediately, I heard back from Abso Lutely producer Dave Kneebone, who told me that his company had not discussed staffing or internships with Turner or Adult Swim. He said the ad I had found “was posted in error by one of our associate producers and not in line with our hiring practices.” The ad had been taken down and would be corrected and reposted, Kneebone said, to reflect that “we do, in fact, pay our interns.”

Another financially convenient error. Still, change is welcome—particularly if the change is in the form of actual payment going to interns who would have otherwise been working for free.

But journalists sending requests for comment is a rather ad hoc way of getting people paid—and there are many independent production companies that don’t work with bigger firms with big fears of litigation. Something called Larkin-Stanhope Productions likely feels no pangs of painful irony when it puts out a call for “interns/production-assistants” to work for free on a film about a man who “finds himself without a job and short on the utility bill.” (At least there’s nudity to keep things interesting, but according to a casting call for the same film in Backstage, even the actors won’t be reimbursed for stripping down.)

Spike Lee, though: there’s a guy who would make sure his productions don’t perpetuate unfair labor practices that effectively bar the poor from breaking into the entertainment industry and that place at a distinct disadvantage those (disproportionately women and men of color) who don’t have enough money to devote time to a job that won’t help them pay the utility bill. Right?

Wrong. A-Town Boyz is “a feature-length documentary about the growing up experiences of Asian American men in Atlanta, Georgia,” according to the promotional website from Delphin Films. Lee is an executive producer for the film, which is looking to hire a production assistant who has “an interest in social justice [documentaries] as well as issues related to Asian Americans, immigration, masculinity, and marginalization of [people of color].” Despite the social justice angle, however, the position—which involves “proofreading grant applications, as well as creating social media content”—is not paid, though the eight-hour-per-week time commitment and option to work remotely makes it far from the worst opportunity out there.

Academic-credit agreements and promises of close mentoring from experienced staffers allow many companies to skirt minimum wage laws with their unpaid internship programs—even if these maneuvers are legally dubious. Still, it’s not right for a company that makes a profit to deny employees so much as a dime an hour for their labor.

What’s more, even employers who promise to pay—at $8 or $9 an hour, the bare legal minimum—can’t always be trusted to live up to their word.

Christian Cook is a freelance production assistant in New York who also happens to be my friend. He told me that companies sometimes pull a bait-and-switch, where they’ll first imply a job is paid—as jobs are supposed to be—only to plead poverty later on. “One time, I responded to an ad for a film shooting in Philly,” Cook told me. After interviewing, he was told the position was “low-pay”—a fact of life he was willing to accept in exchange for adding a film credit to his résumé. By the time he showed up for work, however, the production manager informed him the position had “changed from low-pay to no-pay.” (Sorry for the confusion, friend.)

“Are you still interested?” the manager asked, to which any prospective employee would understandably wish to respond with a stream of obscenity. But the truth is, times are tough, and no money and a film credit are arguably better than no money and no credit. “Of course I thought about doing it,” said Cook. “The actors were people I had heard of.” In the end, though, what was left of his dignity kicked in—but he was tempted.

Employers know people are desperate—and when dreams are involved, the desperation to make it is palpable. So companies do sleazy things, confident that the workers they are exploiting will accept their exploitation in the hopes that it will lead to a paying gig, someday.

As it turns out, there are many ways to cheat a worker, and Hollywood production companies are familiar with all of them. Legally speaking, an employer engages in what is called “wage theft” when they, by hook or by crook, cheat an employee out of the full wages they are legally entitled to. An employer who doesn’t pay any wages at all is clearly a thief, but so is one who doesn’t pay overtime.

The most insidious and prevalent kind of wage theft involves cheating employees out of money by manipulating the tax code: if the employer can label someone an “independent contractor,” they can then pass off their tax burden to the worker, reducing the worker’s take-home pay and preventing them from obtaining the legal and health benefits that would come with being labeled an “employee.” In Hollywood, that’s fairly common. What can the prospective employee do, put up a fight and risk losing the job? Complain to the union he or she doesn’t belong to?

Newcomers to Hollywood might think being a “producer” is more prestigious than being a mere “writer,” but when it comes to reality TV and talk shows, labeling a staffer a producer is actually a way for companies to avoid having to honor their collective bargaining agreement with the writers’ guild. If an employer calls someone a “writer,” they’ll have to provide health insurance.

Abuses like this are common. And they are part of the reason why, when I worked in Hollywood, I’d see my colleagues using the office WiFi to download all the latest films and TV shows. Listen to the big entertainment companies, and you’d think these workers were essentially stealing from themselves. But if you work in the industry, you know the only ones stealing from you are your employers.

With exposure comes the hope for change. The networks I spoke to as I reported this piece all got the ads for unpaid labor pulled immediately after I brought them to their attention. But that’s piecemeal change, from companies likely fearing bad publicity. Not paying people is never a good look, particularly when the people offering the unpaid opportunities are getting paid with a lot more than just “experience.” Shining a little light can actually bring about some change in this regard. See an unpaid job listing? Reply by sending the poster the pertinent sections of the federal labor code.

More than light, though, the enforcement of fair labor practices in the entertainment industry requires some teeth. Those who exploit labor by refusing to pay for it are thieves, and yet the worst that can happen is they might get hit with a civil suit—and any penalties will be imposed on the larger corporation, rather than the individuals who personally authorized the exploitation. Employees who steal from their employers are subject to criminal prosecution; so long as we’re going to insist on putting petty thieves behind bars, why, then, should employers who steal escape the confines of a prison cell? Exposure can bring about modest reform, but only real consequences will bring about serious, lasting change.

Charles Davis is a writer and one-time Hollywood producer who lives in Los Angeles.