Steven Leigh Morris reports the latest twist in the ongoing discussion about the preservation of intimate theater in Los Angeles: actor Ann Colby Stocking has filed an official wage claim against the Odyssey Theatre for back wages from a 2013 show. Her claim, which concerns not being paid minimum wage, had to be filed within 3 years time of her employment.
Her show at the Odyssey Theatre ended October 27, 2013.
You may remember Ann from a town hall meeting held in February 2015 – just after Actors’ Equity announced it intended to eliminate the 99-Seat Plan that had enabled Los Angeles to create a thriving community of stage art. At that meeting, the LA Times reported:
“I may be the only person in this room voting [for the new Equity Plan],” said Ann Colby Stocking. She said that she and some actor friends had in fact approached union leaders asking their help because they need better pay.
She painted the scenario she has seen actors endure: “They’ve come [to rehearsals] from working an eight-hour job. They’re crying from exhaustion, they’re fainting. They can’t take time off, because they can’t afford it.” With better pay, she suggested, the play could be the thing, the exhausting day job, less so.
And what to make of this latest action?
It’s not clear. Ann filed a wage claim and a wage claim is not a lawsuit. A claim may be filed at the Department of Industrial Relations (DIR) for
• Unpaid wages, including overtime, commissions and bonuses.
• Wages paid by check issued with insufficient funds.
• Final paycheck not received.
• Unused vacation hours that were not paid upon termination of the employment relationship, e.g., a quit, discharge, or layoff.
• Unauthorized deductions from paychecks.
• Unpaid/non-reimbursed business expenses.
• Reporting time pay/split shift premiums.
• Failure to provide a meal and/or rest period in accordance with the applicable Industrial Welfare Commission Order.
• Liquidated damages for failure to receive minimum wage for each hour worked.
• Waiting time penalties for failure to receive final wages timely upon separation of employment.
• Penalties for paycheck(s) that have bounced or are not negotiable within 30 days of receipt. Penalties for employer’s failure to allow inspection or copying of payroll records within 21 days of request.
• Sick Leave Pay for time accrued and used for which you were not paid (effective July 1, 2015).
In short, the DIR handles cases where someone was cheated out of wages.
And here’s some more context for the role of the DIR:
In addition, based on California law and court decisions, the Labor Commissioner, in some cases, does not have jurisdiction over the wage claims of union members working under collective bargaining agreements.
In other words, the purpose of the taxpayer-funded DIL is to protect people from being ripped off by employers who don’t satisfy their legal obligations. That’s why the DIR claim form explicitly asks
Is there a union contract covering your employment? (Question #3)
Were you paid or promised a FIXED amount of wages per pay period, no matter how many hours you worked (for example, $400 per week, regardless of how many hours you worked)? (Question #32)
I do not know how Ann Colby Stocking answered these questions. Nevertheless, unless she had a special arrangement with the Odyssey, it’s pretty clear that (a) there was a union agreement in place about wages (i.e. the 99-Seat Plan) and (b) it was for a fixed amount (based on performances).
In other words, unless the Odyssey Theatre violated the 99-Seat Plan, it’s difficult to imagine how the employer violated a pre-determined agreement.
This is precisely the reason the first part of a claim process is for the government to figure out if (a) there is a legitimate case and (b) it can be resolved without a formal hearing. The whole thing is laid out in this official video:
This video, produced by the DIR, makes obvious the usual cases brought before it. From janitors. Fruit pickers. Car washers. Day Laborers.
Not creative artists. Belonging to a union.
The DIR’s stated purpose is to see that the law is enforced. As such, Ann’s case comes down to whether the 99-Seat Plan is legal. If Actors’ Equity, which wants to rid itself of the plan, thought the 99-Seat Plan was illegal, it wouldn’t have drafted it 30 years ago. And it certainly would have pointed out its illegality (with associated proof) in 2015 rather than attempt to convince its LA membership that getting rid of the Plan was beneficial to actors. And it wouldn’t have allowed the Plan to stand in near-facsimile form as an interim arrangement before the new plan began.
If the 99-Seat Plan could easily be shown to be illegal, Equity, with its associated AFL-CIO legal minds, would surely have made the case by now. In court.
But it hasn’t.
And because DIR meetings are about about mediation and law-enforcement, they do not represent any kind of legal precedent. A conference room is not a court of law.
Which begs the question: why did Ann Colby Stocking choose this action? Her named advocate, David Mack, has no legal training according to his biography. Ann is a member of Rogue Machine Theatre, whose Artistic Director, John Perrin Flynn, is presently a plaintiff on the lawsuit against Equity. She is currently appearing in a 99-Seat Plan production at BostonCourt. She continues to be willingly enmeshed in a system that she is simultaneously fighting as unfair.
And, because she knows there is no money in intimate theater, she clearly isn’t performing in it for the money. Not unless it’s 3 years in the past.
Originally published May 26, 2016 in Footlights.