The state of Georgia has seen a surge in film and television productions. A generous state tax credit has provided a strong incentive for producers to come to Atlanta and set up shop. All these new TV and movie productions have created a demand for workers in front of and behind the camera.
There are unions that represent many of these workers on productions around the country. For example there is SAG for actors and IATSE for the crew. Unions do have a presence on Georgia sets, but there are a lot of non-union productions. Absent a union contract these non-union workers may only have federal and state laws to protect them at work. One of the important federal employment laws is the Fair Labor Standards Act (FLSA). The FLSA applies to employees who work for a business doing $500,000 of business annually or if the employee’s work regularly involves them in commerce between States. This coverage is interpreted very broadly. Most employees are covered by the FLSA.
Movies and TV sets are notorious for long hours. It is not unusual for a day of filming to start early in the morning with make up and prep then wrapping late at night. This means that there may be weeks where workers on TV and film productions work more than 40 hours in a workweek. Some state laws require overtime to be paid when an employee works more than 8 hours in a day. In Georgia, like in many other states, workers only need to be paid overtime for each hour over 40 worked in a workweek.
There is an exemption under the Fair Labor Standards Act that might apply to actors and writers. The Creative Professional exemption applies to individuals who:
Are on paid a salary basis and earn $455 or more a week.
Do work that requires invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
So actors earning a salary of $455 a week or more can legally work as many hours as they are asked to work without being paid overtime.
Crew members who do manual labor like an electrician or a grip are usually not exempt from the overtime requirements of the FLSA.
Something that seems to becoming more common is asking people to work on productions for free. These aren’t film students asking their friends to help out on a shoot. There are for profit production companies in the Georgia film and TV scene that ask people to work for them for no pay.
Extras are the positions where people are most often asked to work for free. This isn’t to say that all production companies in Georgia ask their extras to work for free. Many reputable TV shows and films pay their extras an hourly rate above minimum wage and some even pay time and a half for each hour over 8 worked in a day.
Less reputable companies, lured by the generous tax credits, have also come down to film in Georgia. Because film and TV is seen as glamourous and exciting casting companies are able to find people willing to work for nothing. Just because people are willing to work for free doesn’t make it legal or right.
As mentioned above all employees are required to be paid at least the minimum wage (currently $7.25 an hour) and time and half of their hourly rate for each hour worked over 40 in a workweek.
Extras usually come in for a day or two so it’s unlikely that they would work more than 40 hours for the same employer in a workweek. However, working for free or working lots of hours for a flat rate might violate the minimum wage requirement of the Fair Labor Standards Act.
Minimum wage is calculated by dividing the number of hours worked in a week by the pay received for that week. Currently the federal minimum wage is $7.25 an hour. Some states require employees be paid a higher minimum wage than required under federal law. Georgia is not one of those states. Obviously if you are being payed 0 dollars an hour then you aren’t earning more than $7.25 an hour.
Minimum wage laws can also be violated when an extra gets paid a flat rate for a day’s work. For example, if an extra is paid $50 for a shoot that last 10 hours then the effective hourly rate is $5 an hour so this arrangement violates minimum wage laws.
Production companies might argue that the minimum wage laws don’t apply to them because the extras aren’t employees but “independent contractors”. I would disagree. As I have written about before, many employers wrongly classify employees as independent contractors in order to avoid following federal and state employment rules. Even if the employer makes the extra sign an independent contractor agreement and pays the individual on a 1099 doesn’t mean that the extra is legally an independent contractor.
The main issue to consider in deciding whether a worker is an employee or independent contractor is if the business has the right to direct and control a worker as to the details of when, where, and how work is to be performed. It is a fact intensive determination.
For instance, if an extra is told when to come for the shoot, given a costume to wear, has to get makeup done on set, and is then directed where to stand or what to do then it would appear that the extra should be considered an employee. If the extra is has to bring their own clothing and do their own makeup then maybe they could be considered an independent contractor. However because an extra is always directed as to when to be at the shoot, where to stand on set, and what to do while the camera rolls it may be that extras can never be considered independent contractors.
Courts in the past have ruled that entertainers can be independent contractors. In 1943 the United States Second Circuit Court of Appeals found that performers in the vaudeville acts hired to play in shows at Radio City Music Hall were independent contractors rather than employees. However, the situation of vaudeville performers is very different to extras. Vaudeville performers come with their own act, their own costumes, and basically perform their act how they want. It would be hard to argue that an extra has the same sort of control over when, where, and how their work is to be performed. Here is an article which says it is direct guidance from the IRS that has further information about independent contractors misclassification in the TV and movie industry.
Another wage and our violation that has been common in the entertainment industry is the unpaid internship. Lawsuits have helped companies recognize that they can’t pay their entry level people nothing, but that doesn’t mean the practice has completely faded away. The allure of the entertainment industry is strong and these unpaid entry level positions are sometimes the only way to break into the industry. Unpaid internships for for-profit companies outside of an education context (i.e. for college credit) are almost always illegal.
The movie and TV industry in Georgia is becoming bigger and bigger. Shoots are happening all over the Atlanta metro area and throughout Georgia. It’s great that people here in Georgia have the chance to work in the multi-billion dollar film and TV industry. It is up to the people in the industry to make sure companies play by the rules and follow the law.