Overtime Pay and Other Employment Rights for Entertainment Industry Workers

Hollywood is synonymous with the Entertainment Industry. Along with Los Angeles, and to a lesser extent the State of California as a whole, Hollywood has long been regarded as the heart of the motion picture, sound, and television industries and the Entertainment Capital of the World.

The “Motion Picture Industry,” established in California over a century ago, is defined under California law as “any industry, business or establishment operated for the purpose of motion picture or television film production, or primarily allied with theatrical or television, motion picture productions, including but not limited to motion pictures for entertainment, commercial, religious, or educational purposes, whether made by film, tape, or otherwise.” 8 Cal. Code of Regulations § 11120(2)(K). The Motion Picture Industry differs from other industries in many respects. The development of a motion picture project is a long succession of creative decisions with far-reaching economic implications for those involved. Substantial financing may be required to take the project into production. Producers recruit the director, the cast and crew, scout possible shooting locations, design sets and costumes, and estimate a production budget. The actual making of the production may involve many small businesses and independent contractors hired on an as-needed basis, and the contracting of workers in other industries that supply support services such as truck drivers, caterers, electricians, makeup artists, and hairdressers. The work environment can vary from clean, comfortable surroundings to working on location in adverse weather and under unpleasant and occasionally hazardous conditions. Long and irregular hours, and extensive travel are not uncommon.

Given the unique nature of the Entertainment Industry, California wage and hour laws for entertainment industry workers differ in significant ways from those governing other industries.

While the regular rules of overtime generally apply to the Entertainment Industry (e.g. 1.5 times the regular rate of pay for work in excess of 8 hours in a workday or 40 hours in a workweek, and for the first 8 hours worked on the 7^th day of work in any one workweek) there are exceptions as follows.

Professional actors are exempt from California overtime laws. 8 Cal. Code of Regulations § 11120(1)(C).

An extra, also known as an extra player or background actor or artist is a role in a motion picture, television show, music video, or commercial that does not involve any speaking lines. These non-speaking roles help create a more realistic setting for a scene. Historically, this has been a significant source of employment in the Entertainment Industry. An “Extra Player is “any person employed by an employer in the production of motion pictures to perform any work, including but not limited to that of a general extra, stand-in, photographic double, sports player, silent bit, or dress extra; or as extras employed in dancing, skating, swimming, diving, riding, driving, or singing; or as extras employed to perform any other actions, gestures, facial expressions, or pantomime.” 8 Cal. Code of Regulations § 11120(2)(G).

Extra Players must be paid overtime under California’s overtime and wage laws. Most workers entitled to overtime pay under California’s overtime and wage laws are paid an hourly rate by their employer. In contrast, Extra Players are generally paid a minimum daily rate for a regular workday of 8 hours. See SAG-AFTRA Background Actors Contracts Digest, Updated 10.01.20.

When Extra Players work more than 8 hours in a workday or 40 hours in a workweek, a law specific to Extra Players requires such workers to be paid overtime in a very particular manner, “computed in units of one-tenth (1/10) hours” which are 6-minute units. 8 Cal. Code of Regulations § 11120(3)(D)(1). As with most workers, overtime must be paid at 1.5 times their regular rate. Since Extra Players generally are not paid an hourly rate, their regular rate of pay for purposes of calculating their overtime rate is “determined by dividing the amount of the weekly salary by the number of regular hours in a workweek.” 8 Cal. Code of Regulations § 11120(3)(D)(2).

Another quirk in the law is that Extra Players, unlike most other workers, are not entitled to overtime for the first 8 hours worked on the 7^th day of a workweek unless they have already worked in excess of 40 hours in a workweek. For example, a movie extra works 7 days in a particular workweek, but only works 5 hours on each of those workdays. Since the movie extra has only worked 35 (7 x 5) hours that week, he is not entitled to any overtime, even though under these circumstances workers in other industries such as food service and manufacturing would be entitled to overtime pay for the 5 hours worked on the 7^th day of work in the workweek.

Particular to minors is the requirement that generally minors must be paid 1.5 times the minor’s regular rate of pay for all hours worked on the 6th consecutive workday. For example, a minor works on a production set 3 hours a day Monday through Friday. If the minor returns to the production set on Saturday, she must be paid at an overtime rate for all hours worked that Saturday even though she never worked more than 8 hours on any workday or more than 40 hours in the workweek and she would not be entitled to overtime had she been an adult.

Additional restrictions on the employment of minors include:

Minors shall not be employed in the Entertainment Industry more than 8 hours in one day of 24 hours, more than 48 hours in one week, or before 5 a.m., or after 10 p.m. on any day preceding a school day. Cal. Labor Code § 1308.7. To protect minors from exploitation in the workplace, the definition of “Entertainment industry” under California law is expansive and includes theatrical films, television programs in any medium; photography; recording; modeling; theatrical productions; publicity; rodeos; circuses; musical performances; advertising; “and any other performances where a minor performs to entertain the public.” Cal. Labor Code § 1286(f).

A permit from the Labor Commissioner to employ a minor in the entertainment industry is required depending on the age of the minor and the nature of the activity. Cal. Labor Code § 1308.5.

Special restrictions apply to the use of infants under the age of one month. Cal. Labor Code § 1308.8.

Generally, 15 percent of a minor’s gross earnings from an entertainment industry contract must be placed in a trust account and preserved for the benefit of the minor. Cal Family Code §§ 6700-6753; Cal. Labor Code § 1308.9.

In most industries, an employer may not employ a worker for a work period of more than 5 hours without providing the worker a 30-minute meal period (lunch break). In the Motion Picture Industry, generally meal periods may begin as much as an hour later than what is allowed in other industries, as “No employer shall employ any person for a work period of more than six (6) hours without a meal period.” Another requirement unique to the Motion Picture Industry is that on long workdays workers must receive a second meal period no later than 6 hours after the first meal period ended. 8 Cal. Code of Regulations § 11120(11).

As with workers in other industries, Motion Picture Industry workers are entitled to 10 minutes net rest time every 4 hours. Additionally, unique to the Motion Picture Industry is the requirement that “Swimmers, dancers, skaters, and other performers engaged in strenuous physical activities shall have additional interim rest periods during periods of actual rehearsal or shooting.” 8 Cal. Code of Regulations § 11120(12). For example, some union contracts generally require such workers to have at least 15 minutes rest during each hour of actual rehearsal or shooting. See 2013 SAG-AFTRA Commercials Contract.

Workers may work up to 16 hours in any one day and only up to 16 hours in any one day, including meals periods, so long as they are paid overtime in accordance with California law. 8 Cal. Code of Regulations § 11120(3)(A)(1)(a).

“No employee shall be required to report to work unless ten (10) hours have elapsed since the termination of the previous day’s employment.” 8 Cal. Code of Regulations § 11120(3)(F).

“Hot meals and hot drinks shall be provided for employees who are required to work after 12 o’clock midnight, except off-production employees regularly scheduled to work after midnight.” 8 Cal. Code of Regulations § 11120(3)(G).

“When employees are required to work at night and are not dismissed in time to permit their return to their homes by public service transportation, transportation shall be provided by the employer.” 8 Cal. Code of Regulations § 11120(3)(H).

A worker “whose employment terminates is entitled to receive payment of the wages earned and unpaid at the time of the termination by the next regular payday.” Unique to the Motion Picture Industry and Print Shoot employees is the provision allowing employers, at their discretion, to pay the laid off or discharged employee by mail. Cal. Labor Code §§ 201.5, 201.6.

If you work in the Entertainment Industry and believe you have not been paid proper overtime wages, or you believe your employer otherwise violated your rights under California law, contact the leading lawyers at Kokozian Law Firm, APC. Ask about our free initial consultation.