Spokes & Mirrors by Steven Leigh Morris

Odyssey Theatre Hit by Claim for Back-Wages

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[dropcap]Adding[/dropcap] fuel to the long-simmering fire over whether actors working under the 99-Seat Theater Plan are “volunteers,” “independent contractors” or “employees,” actress Ann Colby Stocking has filed a complaint, dated April 11, 2016, with the California Department of Industrial Relations: Division of Labor Standards Enforcement, against Odyssey Theatre Ensemble and its producer, Ron Sossi. Her demand is for over $6,000 — $2,888 for unpaid minimum and overtime wages, plus an additional $2,296 in “liquidated damages,” plus a $36/day penalty from the time of the filing that the demand remains unmet, for up to 30 days.

The claim pertains to a 2013 presentation of Hamlet at the Odyssey, co-produced by Los Angeles Women’s Shakespeare Festival and the Odyssey Theatre, in which Stocking portrayed one of the “players.” (Neither Los Angeles Women’s Shakespeare Festival nor its Producing Artistic Director, Lisa Wolpe, was named in the complaint.)

News of the filing was obtained by @ This Stage from two anonymous sources unassociated with Ron Sossi or anybody else at the Odyssey Theatre. This publication subsequently obtained the case file from the Department of Industrial Relations through the California Public Records Act. The plaintiff’s “attorney/advocate” for Stocking is named as “Artist Magnet/David Mack.”

In that show, Stocking was performing under the 99-Seat Plan — an agreement between the stage actors’ national union, Actors’ Equity Association (of which Stocking is a member) and its rank and file, granting union actors permission to volunteer their time for rehearsals and performances in registered L.A. County theaters of up to 99 seats, in exchange for expense stipends, determined at a set rate per performance. That Plan has been in effect, region-wide, since 1989. According to Sossi, all of his actors signed agreements before starting rehearsals acknowledging that they were volunteering for performance stipends, as permitted under the Plan.

In a related case, Andrew Turney, an attorney with McDermott Will & Emery LLP, is defending the Boyle Heights theatre CASA 0101 pro bono through the California Lawyers for the Arts. That 99-seat theater is appealing a ruling by the state’s Employment Development Department. Seemingly oblivious to the 99-Seat Plan under which CASA 0101 has been operating, EDD has charged the theater with misclassifying its actors as “volunteers” and its other workers as “independent contractors.” All of these workers should have been classified as employees, the EDD ruled. The EDD made a similar determination after an audit of the 100-seat Shotgun Players in Berkeley. Both theaters are appealing the decisions.

Meanwhile, an administrative law judge in Northern California recently overruled the EDD, which made a similar determination regarding the Sacramento Theatre Company. The EDD had ruled that all workers at the Sacramento company had been misclassified as independent contractors, when they were actually employees. In September of last year, the appeal judge reversed that decision almost in its entirety.

The CASA 0101 case has a number of moving parts, Turney explains; less so the Stocking/Odyssey case.

“It’s one thing for a government agency to challenge status,” Turney says, “but another thing for an actor that has willingly performed as a volunteer to later challenge that status — they should be estopped [barred] from going forward from pursuing a claim.”

And they may well be stopped. The next step in the administrative process is a “conference” (mid-July) in which the plaintiff and defendant appear informally to discuss the issues with a DLSE administrator in order to determine whether or not the state division even has jurisdiction. (DLSE has no jurisdiction over volunteers or independent contractors.)

The filing is actually a trial balloon to test the legality of the 99-Seat Plan. Stocking/Mack’s complaint stems from the premise that she was performing not as a volunteer but as an employee, and is entitled to the minimum and overtime wages (for rehearsals and performances) that employees must receive under state law.

Stocking has also been an outspoken advocate of her union’s recent attempts to eliminate the 99-Seat Plan, and to override a two-thirds advisory vote of local membership to preserve it in some form, though her position hasn’t prevented her from working under the Plan in at least two shows subsequent to Hamlet: Playwrights Arena’s Production of Circus Ugly at Atwater Village Theatre, and The Golden Dragon, at the Boston Court Performing Arts Center.

Meanwhile, her advocate, David Mack, is the founder/CEO of a company called Artist Magnet, an L.A.-based arts service organization. (He has also worked with the Theatrical Producers League of Los Angeles, the Heidi Duckler Dance Company, and the Dance Resource Center.) According to its website, Artist Magnet’s mission is “empowering Artists by connecting them through Shows and Venues everywhere. The company’s services include professional development for local Artists, sponsorship of nonprofit arts organizations and productions, consulting services for arts companies and online services for Artists.”

Slightly before Mack and Stocking filed their claim in April, Mack was busy emailing and calling actors over at DOMA Theatre Company, during its production of Dreamgirls. Mack is not and was never a member of DOMA. The company producer, Marco Gomez, was tipped off by company actors concerned by Mack’s investigations.

In an email dated March 22, DOMA’s producer, Gomez, wrote the following:

“Dear Mr. Mack, As a follow up to my voicemail, I’m inquiring as to the emails and calls you are making to actors that are part of DOMA Theatre Co. Could you let me know what information you are seeking?”

Replied Mr. Mack later that day:

“Dear Marco: Good talking to you on the phone today. Attached is the information from the DLSE on the employee requirements for CA artists involved in theatre productions that we shared with artists working at a variety of theatres in LA. If you have any questions or need more information, feel free to contact Diana Chen at the DLSE at 213-897-6036.”

When asked by @ This Stage what his intentions were, Mack explained:

“Actually I’m friends with an Actor from that company (whose name I will keep anonymous at their request) who told me that they worked on a DOMA show and had to cancel their plane flight to see their family because DOMA changed their tech schedule at the last minute (even though the Actor gave DOMA that conflict before they got the part). The Actor happens to be poor and a person of color, so I was especially sensitive when I heard that they were not able to see their family because they had to do the tech, and they were not compensated for the cancelled plane flight, and of course not paid for the tech, which cost them a lot of money that financially they didn’t have. The Actor also told me that they believed others at DOMA had similar experiences, so I called a few of the Artists to find out if that was true (I will also keep their names anonymous at their request) and during the course of those conversations, I learned that DOMA was a membership company and paying Artists, but some were not being paid at the level required by DSLE law. So eventually I began corresponding with the leadership of DOMA and shared the DLSE info that I presented at [a] town hall . . . and now my understanding is that DOMA is in alignment with DLSE law. So that’s resolved and there’s no issue there, and that’s a success story for the Producers and Artists (especially underserved Artists who are disproportionately young and of color) working at DOMA.”

Gomez, however, asserts that he hasn’t changed a single policy since Mack’s interventions. “We’ve always complied with the law, EDD, IRS and AEA,” he says.

It’s not surprising that Gomez has a terse response to these allegations, given how the 99-Seat Plan — under which DOMA was operating — specifically permits union actors, as volunteers, to leave at any time during rehearsals or performances for any reason, with no adverse consequences to themselves. Meanwhile, the Sacramento ruling asserts that non-union actors are independent contractors and, as such, must have the right to set their own schedules.

Regarding the alleged tech rehearsal incident, Gomez responds, “If an actor chose to stay, that was their decision. We didn’t tell them to stay. On the contrary, I’ve paid for tickets so they could go on family emergencies.”

That said, it’s one thing to cite legal precedent, and quite another for an actor to assert his or her rights in the cauldron of a show being prepared for the public.

Actors’ Equity Association has recently campaigned for its actors, as employees, to be paid minimum wage for rehearsals and performances in theaters of all sizes, the exact standard that Stocking and Mack are now attempting to apply retroactively to the Odyssey Theatre through Stocking’s filing with the Division of Labor Standards Enforcement.

Most of the up-to-99 seat theaters have argued that suddenly applying the minimum wage standard to them would either force them to use non-union actors and/or to curtail their productions — that they’re advocating for a tiered system of payments based on production budgets, but that advocacy keeps hitting brick walls with the union. As Sossi explains, “The Plan was created by Equity to prevent these theaters from making money off the actors’ backs.”

Asked for comment, Stocking replied as follows:

“I wish I could discuss this publicly, but unfortunately, State Law prohibits both myself and anyone at the Odyssey from making this public, or there could be additional fines and sanctions on the Odyssey, which I would like to avoid. As you may know, I have many friends that have both worked and are working at the Odyssey, and I care about the well being of that company very much.”

(The state Department of Industrial Relations submitted the entire case file to @ This Stage’s parent organization, LA STAGE Alliance, within one-business day of the public information request.)

Correction to the original correction, made below: According to Reed Wilkerson, Management Associate for the League of Resident Theatres, the Sacramento Theatre Company is not a LORT-D Theatre because it is not a member of LORT. However, STC does operate under the LORT-D contract via the LORT-AEA collective bargaining agreement, which is why many individuals (including commenters below) believed the organization to be a LORT house. Therefore, both the appeals ruling and the classification of the theatre in the article’s original post as a “community theatre” are actually correct.

In summary, if it looks like a chicken, and acts like a chicken… people will most likely believe it’s a chicken. But unless it’s a member of the Poultry Alliance… it’s not technically a chicken.

We apologize for the confusion.

Editor’s note: We’ve removed the term “community theatre” in reference to Sacramento Theatre Company. This was language used in the appeal, which intended to use “community” more broadly. Sacramento Theatre Company is a LORT-D house.

Steven Leigh Morris

Steven Leigh Morris

Steven is the Executive Director of LA STAGE Alliance, and is the founding editor of the community-funded digital arts venture Stage Raw (www.stageraw.com). Morris chaired the Jury for the Pulitzer Prize for Drama in 2012, and served on that Jury in 2011. He received the Critic of the Year prize for his print reviews by the National Entertainment Journalism Awards in 2011.