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Scuttle the exploitative 99-Seat Theatre Plan and pay actors minimum wage

Performing in front of fewer than 100 people is no excuse for actors not to be paid minimum wage

It seems like a straightforward question with an equally straightforward answer: Should actors earn at least minimum wage?

Surprisingly, a bitter dispute has broken out in the Los Angeles theatre community over an actors union proposal that would for the first time require performers in small theatres -- those with 99 or fewer seats -- to be paid at least the California minimum wage of $9 an hour. These small theatres are currently exempt from union contracts and consider their actors "volunteers," exempt from minimum wage laws.

The Actors' Equity Assn. argues that actors are like any other workers and deserve compensation for their effort, skills and time at so-called 99 Seat Theatres. In his recent Times op-ed article, Tim Robbins makes the case for why this would be a mistake, arguing that requiring small theatre owners and producers to pay minimum wage instead of the much lower daily stipends (usually no more than $25) that actors currently receive for performances would bankrupt small theatres, many of which are run by nonprofit organizations. They are urging actors to vote down the Equity proposal in an advisory referendum the union is holding next month. The battle has taken intense, emotional tones at times, with those opposing the union's plan calling it a threat to the very existence of small theatre in Los Angeles. 

Robbins even claims that Equity’s proposal to end "volunteering" in theatres might be illegal. However, the California law he cites (California Labor Code Section 1720.4) deals only with construction projects, and there is no prohibition on Equity making internal union rules.

Instead, the heated rhetoric of this debate may give way to the simple logic of a different law. Since 1988, the California Division of Labor Standards Enforcement’s policy has been that nonprofits that charge for goods or services are operating a "commercial activity" and must pay minimum wage to their employees.

The theatres claim that the actors are "volunteering" their time and talent.  Their argument is not so different from other employers who label their workers "interns," "independent contractors" or "franchisees" to avoid complying with basic labor standards. But a host of legal decisions in these other contexts has left no doubt: Labels don't matter. No matter what the theatres choose to call their actors, the law is clear that if they are working for a theatre that sells tickets, they are not volunteers, and they are entitled to minimum wage. 

Rules like the minimum wage are critical to protecting workers’ rights. They provide a wage floor to workers trying to make ends meet and a level playing field that prevents businesses from gaining an advantage over competitors. Theatre owners argue that paying the minimum wage would lead to job cuts, business closures and higher unemployment for workers; this argument has been raised in every industry from restaurants to carwash to home care to fast food and many others. Over and over again, it has been proved wrong.

Theatres with more than 100 seats are already complying with minimum wage requirements. So are small for-profit businesses and other small nonprofits that operate commercial enterprises. 

Despite the outcry by small theatres, they would probably be able to adjust to paying minimum wage. Many theatres have annual operating budgets in the hundreds of thousands of dollars and already pay directors, producers and other theatre staff. In fact, actors are often the only unpaid labor. In addition to requiring minimum wage for actors, Equity’s proposal would also remove current caps on theatre ticket prices, helping theatres adjust to paying minimum wage, just as other employers have. In fact, even now in L.A., some small theatres are already voluntarily paying their actors more.

That is good news, because just like thousands of other nonprofits and small businesses in California, theatre owners and producers must follow the law.

Rebecca Smith is the deputy director of the National Employment Law Project.

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