Tuesday, June 24, 2008

"On-Call" Employment

Recently, a large studio we know asked many of its leads and supervisors working on 40-hour deals to become "on-call."

So what the hey is "on-call"?

It's an employee classification that many unions -- particularly entertainment unions -- have in their contracts. TAG's "on call" language goes as follows:

... classifications covered by this Agreement who are exempt under the Fair Labor Standards Act of 1938 as amended, and whose rate is higher than one hundred ten percent ... of the applicable Journey rate may, at the Producer's option, be considered on an "On-Call" basis if mutually agreeable with the employee.

An employee placed in such category shall not be subject to the provisions set forth in Article 5 hereof [overtime] and may be required to work additional hours as required during those days.

If an employee employed pursuant to Article 5, Paragraph A. below shall be required to work a sixth or seventh workday. ... then he shall be paid one and one-half times one-fifth of the minimum basic weekly rate provided herein ...

Okay, so what does this gobbledy-gook mean in English?

It means that employees who are required to be paid overtime by Federal regulations (called "non-exempt") canNOT be put "On-call". But employees who aren't required to be paid overtime (usually supervisors and/or employees using "independent, creative judgement" ... and classified "exempt") can.

(Interestingly, "animators" are considered non-exempt under the regs.)

This means that exempt, "on-call" employees won't be paid overtime Monday through Friday. But the employees have to agree to it.

Oh yeah. And they'll be paid time-and-a-half on the sixth and seventh days worked (usually Saturday and Sunday), and they'll be paid for a full eight-hour shift whether they work one hour or eight. The contract says the on-call employee will be paid at the minimum contractual wage rate, but state regs require this work be paid at the employees "real rate of pay." (Still with me?)

So companies, good citizens that they are, pay at "the real rate of pay."

Years ago, the companies pushed hard to get the requirement of employees having to AGREE to be on-call out of the contract. We pushed back harder, and the existing language stayed in.

But of course, companies still have plenty of carrots and sticks to get people who work for them to agree to an on-call classification. Prospective employees can be told that signing off on on-call is a condition of employment. And continuing employees can be told:

"We're giving you a choice here. You can stay with your present pay arrangement based on your 40-hour deal ... or you can agree to this new "on-call" arrangement and show us that you're a team player worthy of our love and respect ..."

The subtext being, "you want to to keep working here ... hmmmm?" Many supervisors take the second option.

As we say, leverage counts for a lot in Tinseltown.

Add On: Ooh boy. I've corrected the typo right under the contract language: "... employees who are required ... " and a couple of other semi-garbled passages. Sorry for any confusion.

14 comments:

Anonymous said...

I really appreciate the types of situations and classifications that you've been outlining in a lot of these posts, but something I'm seeing a lack of is what one can do in a situation like this, where the company has leverage over you and is asking you to work in an illegitimate way.

I guess what I'm asking is, as someone who's going to be entering the workforce soon, I want to know what I can do in a given situation as well as types of situations to watch out for.

Anonymous said...

-It means that employees who aren't required to be paid overtime by Federal regulations (interestingly, the regs say that "animators" need to be paid o.t.) canNOT be put "On-call", but that employees who aren't required to be paid overtime (usually supervisors and/or employees using "independent, creative judgement" ... whatever the hell that means) CAN.


very confused about what this says or means. sarcasm doesn't help either.

this shell game of employee designations and who or what type of employee is vulnerable to sudden changes in pay is ridiculous. how is the artist supposed to reasonably negotiate thru this quagmire of bullshit? it is obnoxious.

why is it necessary not to name the studio here? what leverage can possibly be gained from that? if they are within their rights to do it, then name them. if they are not, then name them. either way, it doesn't help not knowing.

Anonymous said...

I agree. Since this is a practice that people should know about before attempting to be hired at a given studio, it would be helpful (and perfectly ethical) to suggest which studio this is.

Anonymous said...

"why is it necessary not to name the studio here? what leverage can possibly be gained from that? if they are within their rights to do it, then name them. if they are not, then name them."

I think the studio Steve Hulett is talking about here is Disney Animation Studio.

Anonymous said...

To the first poster, who asks what people can do --
in a situation like this, where the company has the legal right to push people to become "on call," there's really only two responses (assuming one doesn't want to be "on call"):

1. Say 'no,' and let the chips fall where they may. Often people assume the worst, but in some of these situations the company will just shrug their shoulders and not worry about it. But it's a real risk that they'll hold it against you.

2. Confer with your coworkers in the same situation, and privately agree together that you will all say 'no.' It's much easier for a group to push back compared to an individual. Animation professionals are generally not that great at using this strategy, but it is a powerful one. I think the individuals in this case are pretty highly valued by the company, and if they act as a group they're less likely to trigger a backlash.

hoopcooper said...

It's weird, that an artists creative work is divided into a 5 eight hour days anyway.

Has there been any movement in TAG to negotiate a higher rate for Per Week? I'm always hired "per week." It's not until it's divided onto a IA timecard that it becomes an hourly issues.

I didn't see the harm, until there was a day I didn't go to work. All the work was done, the shows were all completed, but I wasn't paid for the day I missed. All because my "per week pay" was actually, hourly.

I would say, if you're not strictly an animator and exempt, assume the studio is going to exploit you, and figure your nights and weekends into what you're going to get paid. The assignment of hours to the job is sort of an afterthought anyway...at least where these employees are concerned.

Anonymous said...

Steve, does this pertain to supervising animators? Are they exempt or non-exempt?

Steve Hulett said...

Hoop:

Everybody in the TAG c.b.a. works on an hourly basis -- meaning they get o.t. after eight. And they get docked if they miss a day.

"On-Call" employees work extra hours Monday-Friday without additional pay.

Last point: Exempt employees are exempt from overtime requirements under Federal law and regs, non-exempt employees have to receive overtime.

(Federal and state regulations, sad to say, are often ignored by companies, either willfully or through ignorance.)

Lastly. I hope the draft above is clearer, now that I've repaired typos.

Anonymous said...

That studio would'nt happen to be DISNEY would it?
Of course it is.
Perhaps John is saving up for another winery and doesn't want to dip into his Cars merhandise money bin to buy it.

hoopcooper said...

Dr. Hulett,

Thanks for the clarification. I'm a little chilled by the finality of your statement:

"Everybody in the TAG c.b.a. works on an hourly basis -- meaning they get o.t. after eight. And they get docked if they miss a day."

It's just an example of how a system that was designed for a craft union is applied to artists whose real objective it to complete a project by a deadline. We all work endless hours when we're "under the gun." And it's never approved by the studio. Is there any way, without upsetting mother IATSE that we can explore more equitable, flexible ways of paying people that might benefit both artist and studio?

Steve Hulett said...

I'm a little chilled by the finality of your statement:

"Everybody in the TAG c.b.a. works on an hourly basis -- meaning they get o.t. after eight. And they get docked if they miss a day."


Well, everybody works hourly unless they negotiate an "on call" deal.

Writers can be "on-call", although I never was. Never had a problem being hourly (I was mainly staff).

Anonymous said...

We all work endless hours when we're "under the gun." And it's never approved by the studio.

If by "it's never approved by the studio" you mean you're working unpaid overtime, realize that the studio still owes you for that time. It doesn't matter if it's approved or not -- if you work the hours, and they accept your work, they're on the hook to pay you.

Yes, a lot of people are afraid to claim their hours, for fear of repurcussions, but if we're not willing to stand up for our rights under federal law, what are changes in union rules going to do?

hoopcooper said...

Good points, both...

It's a matter of sticking to the union rules, isn't it? And I guess that's the message here. When a studio signs a union deal, they're "on the hook." But you're both right, Steve and Anonymous...that it's up to each of us to remind them of that.

I'm with you on this one.

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