Intimate Theater, the 99-Seat Plan and Getting Artists Justice

Intimate Theater
David Mack. Photo: Karl Preston

I began my career in intimate theater in LA, first as a nonunion actor, then as a member of City Garage Theatre for five years, then as managing director of Watts Village Theater Company (WVTC), co-founded in 1996 by the late Lynn Manning and Quentin Drew. WVTC was created with the vision of bridging gaps within communities of color in South Central LA and the greater LA community. It was born out of a Cornerstone Theater Company residency in Watts, a community that many of you might hesitate to drive through, much less work in every day, due to preconceived notions bestowed by the mainstream news media and pop-culture films, like Boys n the Hood, that persistently characterize communities of color as bastions of poverty and crime.

Lynn often lamented the fact that the press and fellow LA theater artists, “wouldn’t set foot in Watts.” Patrons would privately praise his work but rarely see it when it was presented in South LA. I would probably not have set foot in Watts, either, were it not for the guidance and positive influence of mentors — Leslie Tamaribuchi, Guillermo Aviles-Rodriguez, Rosie Lee Hooks — who opened my eyes to the amazing talent and cultural value of the many everyday people and local artists working passionately, against all odds, to build something beautiful in their community. As it turns out, my mentors did me a great service, and developing theater in Watts, a community written off by many in the LA theater establishment, was one of the best decisions I ever made in my professional career.

intimate theater
With singer Allison Iraheta at a 2012 fundraiser. Photo: Watts Village Theater Company.

It was in Watts that I began to truly appreciate the real sacrifices some people in LA make for their art. For the people in Watts, they don’t do it simply because it’s fun, personally fulfilling or intellectually stimulating. They do it because they must tell their stories to give voice and dignity to their oppressed communities, cultural values and individual identities. It is, for them, literally a matter of individual and collective survival. It is ironic that a community with so many needs would give me so much: my first full-time salary in LA theater, which I fundraised for myself, in partnership with the WVTC team, over the course of four years; the opportunity to produce amazing citywide festivals, in partnership with dozens of intimate theater, music and dance companies; and visibility and respect among the greater LA arts community. And I was happy to give back by raising hundreds of thousands of dollars for the Watts community and by providing dozens of jobs for local artists and small businesses. I also made a promise to the Watts community that I would always try to make time to help the most vulnerable among us — the women, the people of color, the LGBTQ community, the people with disabilities, the people in poverty — who have to constantly defend themselves from mistreatment and intimidation, who are too often denied the freedom to choose how to shape their lives and build their careers.

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TPL-LA, AEA and Pro-99

It was on this platform that I campaigned and was elected by the LA theater community to sit on the committee that created the Theatrical Producer’s League of Los Angeles (TPL-LA), a trade association of top local producers and theater companies dedicated to the betterment of LA theater. Working with this body for two years confirmed what I already intuitively knew: the vast majority of LA theater producers — union and nonunion — are good, fair people who care a great deal about their artists, staff, audiences and communities. They, in short, really do want the best for LA theater.

Why TPL-LA was created.

Of the many reasons TPL-LA was created, the ones presented to us most vocally by the LA Stage Alliance (LASA), a service organization for LA theaters and artists who helped create the League, were artists’ concerns with the current and, more importantly, future 99-Seat Plan overseen by Actors’ Equity Association (AEA). (In case you are unaware of what the 99-Seat Plan is, you can read it here.)

Friends, colleagues and even strangers, some involved in the arts and some outside the scene (I call them “civilians”), have been reaching out to me lately via private emails, personal chats and text messages, asking why I became involved in LA theater. They use colorful language in their questions — phrases like “wasting your time,” “demeaning yourself,” “stagnating your career,” “rolling in the mud with amateurs who want to work for free.” I try to use these questions as an opportunity to educate people that LA theater is, in fact, full of diverse, extremely talented arts practitioners, all making very different and unique choices in how they pursue their professional careers. When Center Theatre Group recently announced a new initiative to support and highlight local theater, they put this statement on their website:

Block Party is a new initiative focused on supporting and highlighting Los Angeles area theatres through the sharing of audiences, ideas, and resources. Los Angeles is home to over 250 theatre companies — including more small theatres than New York — featuring an abundance of talent, diversity, and ingenuity. To celebrate the vibrant theatre of our city, Center Theatre Group is premiering Block Party at the Kirk Douglas Theatre. We’ll present three recently produced productions from local theatre companies, highlighting some of the best work our region has to offer for our audiences, sharing our resources and reach with companies that are new to us, and encouraging collaboration and stronger relationships among the Los Angeles theatre community.

Two-thirds of LA union actors rejected AEA’s new 99-Seat Plan.

At the time TPL-LA was created, many people wanted a forum to openly discuss how the 99-Seat Plan could be improved to respond to the real and evolving needs of LA actors and the rest of the theater community. Items discussed included removing the caps on ticket prices and the number of allowed performances, and allowing theaters to videotape performances. This was in 2012, before the creation of the Pro-99 movement, which rejects how the union proposes to update its Plan, and also before the return of the “Waiver Wars” between Pro-99 forces and AEA. (If you do not know what the Waiver Wars are, you can get a brief history lesson here.) In essence, there is decades-long precedent for unionized LA intimate theater to have certain rules waived, and AEA now proposes — despite an out-of-court settlement dating back to the 1980s — to end many of those waivers going forward. The financial hit that many intimate theaters would face, Pro-99 says, would put them out of business or force them to go nonunion. (Another summary of the 1970s and ’80s Waiver Wars, and creation of the 99-Seat Plan, can be found here.)

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When the Waiver Wars reignited last year, here’s how the LA times summarized the stakes:

National leaders of Actors’ Equity Assn. on Tuesday imposed a $9 hourly minimum wage for members who perform in Los Angeles County theaters with fewer than 100 seats, overriding a recent vote by rank-and-file union members in L.A.’s stage acting community… For companies not falling under the exceptions, the minimum wage requirement is likely to raise production costs exponentially. Actors who now earn about $240 for a typical 16-show run could earn more than $1,000 for shows requiring substantial rehearsals.

When AEA, in April 2015, asked its LA rank-and-file to take an “advisory” vote on a proposed new 99-Seat Plan, 66% voted against it, then the union decided to impose a similar plan on the membership anyway. In response, a group of actors including Edward Asner filed a lawsuit against AEA, but didn’t serve the suit at that time. Instead, both sides engaged in subsequent meetings (some characterized this as “negotiations”), which ended without resolution and both sides vowing to defend their respective positions in court. And now the suit has, in fact, been served. On June 30, the LA Times covered the lawsuit here:

The plaintiffs…argue that the new minimum wage would be an untenable financial burden for small theaters, too drastic a shift from the previous system that allowed for token payments for performances and no wage for rehearsals.

To which AEA responded:

While we are disappointed that this dispute will enter the courtroom, Equity intends to vigorously defend itself against the meritless lawsuit and will file an immediate motion to dismiss. We are fully prepared to defend both the process and the substance of [the National] Council’s actions.

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The Pro-99 argument is not necessarily about minimum wage laws, per se, but rather that AEA illegally violated the will of its own membership. Pro-99 will also argue that the ’80s settlement, through which AEA allows actors to work for less than minimum wage — to volunteer for a stipend, as they call it — will be violated as well by AEA’s new 99-Seat Plan.

AEA could argue that the will of the LA membership violates minimum wage laws, but in doing so they risk undermining themselves because their new Plan may also violate both minimum wage and nonprofit law: it allows actors working in houses of fewer than 50 seats, under certain circumstances, to be exempt from minimum wage, yet does not exempt board members and other legally protected volunteers.

intimate theater
The board of the Watts Village Theatre Company: Guillermo Aviles-Rodriguez, Victor de la Cruz, Debra Piver, David Mack, Leslie Tamaribuchi, Lynn Manning, Raquel Cinat and David Catanzarite. Photo: Watts Village Theatre Company.

During the time I served on the board of TPL-LA, I did not use the 99-Seat Plan in my work, and I do not plan to use it (or any other AEA plan) in the future. In other words, I intend to remain a nonunion producer. That does not mean I have not listened carefully to many of my AEA friends who are passionate LA theater artists and who, for many legitimate reasons, are interested in protecting their rights to volunteer in the professional theater. I respect the view of any actors or stage managers who are fully informed of their rights and choices and wish to work under the 99-Seat Plan or any other Plan they choose in order to deliver their services and talent to the stage. Further, I appreciate the value of volunteerism in sustaining our industry. Obviously this is all just my opinion. I am no longer a member of TPL-LA and have no ultimate authority on the matter. But it does not follow that the freedom to volunteer should infringe on the rights of the most vulnerable among us who are legally entitled to be paid for their work.

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Actors Abused by Broadway Theatricals

In 2015, I read Dillon Slagle’s compelling articles on The Clyde Fitch Report regarding a cohort of union and nonunion actors who worked on a production of the musical Rent, produced by Broadway Theatricals. The point of the article was that actors expected to be paid and were not. What I found most disheartening was that of the many institutions and groups that ostensibly exist to support LA theater artists — TPL-LA, LASA, AEA, the Stage Directors and Choreographers Society (SDC), Pro-99 — none, apparently, were willing or able to help these actors who were treated so badly by Zaccharin Thibodeau, Broadway Theatricals’ producer. In the aftermath of Slagle’s stories, as LA actors continued to plead for help with their cases on social media and beyond, I reached out to a few of them and told them I would try to help in any way I could.

intimate theater
With LA Councilman Mitch O’Farrell at a 2013 event for Invisible Cities Opera. Photo: Dana Ross.

Around this same time, an old college friend from the Midwest who works in industrial labor relations shared some information that led me to California’s Division of Labor Standards Enforcement (DLSE). After some research, I learned that the DLSE is a taxpayer-funded agency with sole authority to enforce California labor law — and, by law, its rules and regulations supersede union agreements. I reached out to DLSE and explained the Broadway Theatricals issue and asked if they could help. They said they could, so I relayed that information to the Rent actors that I was corresponding with. I cautioned the actors to expect a long, difficult process with no guarantees. Many of them still wanted justice for their mistreatment; some moved ahead with their cases.

“I intend to remain a nonunion producer.”

Thus began a nearly yearlong process that ultimately led to the DLSE informing the actors that, based on the circumstances of that production of Rent, they were entitled to pursue a claim against Broadway Theatricals. DLSE explained that the actors had three options. First, they could retroactively demand minimum wage for their work. Or they could demand the wage that the theater offered them originally, which worked out to approximately $4 an hour. Or they could drop the matter. The DLSE made it clear, also, that one actor’s choice need not infringe on another actor’s right to make a different choice. The DLSE then informed Broadway Theatricals that they had to pay those actors who asked for it either  minimum wage or what they were originally offered, actors’ choice. Backed into a corner, Broadway Theatricals reached out to the actors and offered to cooperate. Mentally, some actors had already moved on and went for the third option. Others went for the second option. Other pursued the full amount they were owed under the law.

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DLSE Leads to a Town Hall

As I began to learn more about the complexities of DLSE rules and procedures, I asked if they could host a town hall to educate theaters and artists — to make sure that LA theater artists know their rights and that companies could take steps to protect themselves from liability. DLSE indicated that they preferred to educate companies and artists on a case-by-case basis as requests come in. So, based on my conversations with DLSE, I decided to host my own town hall, which was held in partnership with LA County Supervisor Mark Ridley-Thomas’ Empowerment Congress Arts & Culture Committee at the Vision Theatre last year. In this context, I attempted to share all I learned — in language that would be accessible and applicable to arts practitioners. I share this information again here, as some of it has evolved since the town hall. Note that this information applies exclusively to California; each state has its own guidelines for enforcing labor law. At the town hall, I also explicitly stated that I am neither a labor-law expert nor a lawyer, and that any artist interested in learning more should contact the DLSE, and a labor lawyer, directly.

  1. In this context, the term “artists” includes “contracted artists” (e.g., playwrights, designers, composers, choreographers), “hourly artists” and “production members” (e.g., actors, directors, stage managers, stage crew);
  2. Hourly artists and production members may be entitled to request minimum wage through the DLSE for their work, if they meet the following criteria:
    • They audition or interview for a job — a group of friends mounting a show with no vetting process is generally not considered an employer-employee relationship, thus likely exempt;
    • They are required to work on a schedule and their work is managed;
    • The production sells tickets, regardless of whether the production makes a profit or loses money — free or pay-what-you-wish shows are generally exempt, since that is generally not seen as an employer generating revenues from an employee’s work;
    • It would be detrimental to the production if they left without notice.
  3. The DLSE does not distinguish between union and nonunion artists and production members (remember, DLSE rules supersede union agreements) or the theater’s seating capacity;
  4. It is the responsibility of theater companies to be cognizant of these laws and to inform artists and production members of their options in advance of each production so they can make an informed decision about their participation;
  5. If a theater company is a nonprofit and believes it cannot pay minimum wage to its eligible artists and/or production members, it may place such personnel on their board, since in most cases board members must serve as volunteers;
  6. If eligible artists and/or production members wish, they can return their wages back to nonprofit theaters in the form of a tax-deductible donation.

For artists and/or production members in California who worked in projects for which they were entitled to receive minimum wage, there is a three-year statute of limitations on retroactive cases. To determine if they qualify, artists and/or production members may submit a request to the DLSE for free. This is not a lawsuit; there are no lawyers necessary or judges involved. Rather, it is an adjudication determined by state administrators.

(By the way, remember the settlement with AEA from the 1980s? In my conversations with the DLSE, they noted that it has no bearing on their rules, regulations or determinations. They enforce minimum wage laws when an actor or worker claims them, regardless of whether they are in a union or not.)

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Pursuing Equality

After my town hall, I handed over my research to the LA County Supervisor’s Office so anyone who wanted to could access this information. In addition to helping mistreated artists, I have also worked to help culturally competent theater companies in need. In May, for example, I learned from @ This Stage Magazine that California’s Employment Development Department (EDD) was auditing Casa 0101 for misclassifying actors as independent contractors, not employees. Upon reading this, I immediately contacted the leadership of Casa 0101 and asked how I could help, offering suggestions as a friend as to how they might make those actors exempt who want to be exempt, while remaining in compliance with labor law, and they expressed gratitude for my consultation.

The importance of “cultural competency.”

Throughout my career I have had the good fortune to work with some of the most talented artists in theater, opera and dance. One of the most notable qualities they share is their cultural competency: their respect for women, people with disabilities and people from disadvantaged backgrounds have been a model for me to emulate. They largely go unnoticed, but there are heroes among us who support intimate theater every day while facing struggles that most of you would not dare imagine, much less live through. But it is important that we do imagine it: these people are the driving force that makes our arts ecosystem function. Imagine you are blind actor who must get up every day and navigate a city filled with potential threats at every unseen corner. You arrive at an audition for panel of people you cannot identify and must convince them that you deserve a place on that stage. Imagine you are a young African American actress, working part-time as a waitress, struggling to make ends meet as you pursue your career. You must choose between visiting your family only once this year or attending a rehearsal you won’t be paid for because the theater company rescheduled it to the weekend of your flight. Some may ask: “What difference does minimum wage for a few weeks make?” Some may say: “It’s such little money, it’s not worth all this trouble.” But for those at the margins of our community, a little help can make a big difference in their quality of life. It may enable them to continue in the field that we all cherish so deeply. It’s that crucial oil change you neglected so you can keep driving to rehearsals. It’s taking a day off from a stressful day-job. It’s their money, they earned it, and if they ask for it, it’s the law.

While cutting my teeth in Watts, I was taught, and continue to believe, that when the most vulnerable in our community ask for help, they should be treated with respect, even if we disagree with their point of view. This is to say they should not be threatened, mocked or publicly attacked with vicious, personal, degrading insults. Unfortunately, there are plenty of examples of that in our industry today, and too often people in positions of privilege are fostering an atmosphere in which this behavior is tolerated, even encouraged – with no accountability for the perpetrators – simply for the purposes of getting higher ratings. One of the unfortunate repercussions of this is that it can discourage others in our community who are mistreated from expressing themselves and fighting for their beliefs. But I remain hopeful — after all, the actors of Broadway Theatricals finally received justice. I look forward to one day living in a world in which every artist’s rights and choices are respected equally.