THE BLOG

How Big Media Breaks The Law On "Survivor" Island

05/25/2011 12:20 pm ET

Read more strike coverage on the Huffington Post's writers' strike page.

I'd guess most people now believe, five weeks into a strike by the Writers Guild of America, that Big Media is greedy and that it should agree to share money with film and television writers when shows are downloaded over the Internet. We take Big Media's greed for granted. But, here's an even bigger story line that's being lost in the strike: Big Media is probably breaking the law. Big time.

One of the least-talked about aspects of the current strike by Writers Guild of America is that a key demand is to roll in reality television shows under the Guild's jurisdiction so that the abuse of writers comes to an end. The Guild understands that Reality TV has become the nonunion low-wage, cash cow for the networks and the companies they use to produce it. And the Guild understands, like any union should, that any production that is outside the union's reach is a threat to every union member: as non-union labor metastasizes, it drags down the wages for the work covered by the union contract.

It now appears that Big Media has been routinely breaking wage-and-hour laws, pocketing piles of money it should have been paying to writers who work in reality television. Here's the story. Turns out that reality television is a sweat-shop for the writers who make those shows happen: long hours with no overtime pay, no health insurance, and no pension.

Before we talk about the crime, a bit of background. When I've mentioned reality television writers to colleagues, they all say, "those shows are written?" Well, yes. As The Guild explains in a recent study it conducted:

In reality television, hundreds of hours of footage are shot for a single episode. The resulting story is similar in its narrative structure to an episode of scripted television. Reality TV programs have a beginning, middle and end, complete with character arcs, plots, conflict and resolution. The difference between shows like Desperate Housewives and Survivor is how the source material is generated. Reality writers don't script each line for a professional actor to speak. Instead, these writers must use existing footage to work backwards from the ending in the most interesting way possible.

And...

69% of reality writers create storylines or outlines based on previously shot footage. 55% create "paper cuts," which consist of written outlines for a reality TV episode. 54% write material for a host to read or for characters to read as a voiceover. Other job duties include devising the concept or structure for a show and creating scenarios, games and tasks for a program.

Reality TV writers spend an average of 18 weeks working on a particular production. They average 32 weeks of employment in reality TV annually.

So, what did the study find?

Big Media is taking part in a sham that is growing like a cancer throughout the American workplace--the misclassification of workers. Now, this sounds like a very boring phrase. And it would be if, in real life (as opposed to reality TV life), it didn't mean that lots of people were being robbed blind. Sometimes, workers legitimately qualify as independent contractors under the law and are therefore, exempt from overtime payments (I'm going to leave aside for a moment the general point about whether those laws are so broad that they have swept too many people into the catch-all "independent contractor" status).

But, reality TV producers are saying that virtually all their writers are exempt from overtime laws, even if they aren't exactly independent contractors. I have to get legal here for a minute. There are two reasons someone is exempt, as the Guild's study correctly explains:

Salary test: An employee must be paid a salary (usually weekly or monthly), which he or she receives regardless of the number of hours actually worked. In general, this means that the employee must be paid a salary for the entire week if she or he performs any services during the week, and may not be docked for short-term absences (such as sick days or other short leaves of absence) unless the company has a bona fide paid leave policy.

Duties test: There are three so-called "white collar" exemptions: executive, administrative and professional. With respect to writers engaged in the production of reality TV, the claim of exemption could fall under the administrative or professional exemption...The key consideration is whether the writer exercises "discretion and independent judgment" with respect to the creative content of the material, or is required to produce program segments according to predetermined structures and formats.

The Guild actually surveyed writers and found:

To apply the salary test, the survey asked if pay was withheld if the writer missed a day of work or part of a day of work. Forty-nine percent of respondents indicated that, if they missed a day of work, pay was withheld. In order to be considered an exempt employee, a writer must be paid a fixed weekly rate. In most cases the withholding of pay for missed work days violates the salary test, indicating that these employees should be considered nonexempt and entitled to overtime pay.

To apply the duties test, questions were asked about the level of creative judgment and discretion in making creative choices. Fifty-one percent of respondents indicated that they exercised little or no independent creative judgment over the format or story structure of an episode. Eighty-five percent of respondents said that they did not always have discretion in making completely independent creative choices, free from direct supervision.

Applying the salary and duties tests together, the survey found that 95 percent of respondents should be classified as nonexempt and paid on an hourly basis with overtime pay.

Okay, so up until now you say: this is rhetoric. Turns out that the government in California agrees with the Guild. In a decision in one of the numerous complaints filed with the help of the Guild, a former producer of TBS' "Outback Jack" was awarded $35,000 (the ruling is being appealed by the defendants, Nash Entertainment).

So, if you've wondered whether the Guild's strike is your fight, there is the crystal-clear answer. Writers Guild of America members are fighting the very same fight that every worker is fighting--the attempt by corporate America to rewrite the rules of the basic social compact, either by cutting peoples' pay or refusing to share in the money earned, or skating or snubbing the basic rule of law.

Read more strike coverage on the Huffington Post's writers' strike page.