#Pro99: Employees, Volunteers, and the Minimum Wage

Pro99 - Vote No Nowuserpic=fountain-penWhen the urge gets in ’em, actors just gotta act. I’m not an actor, but I am a blogger… and when the urge gets in me, I’ve got write a post*. This time the urge was triggered by two comments on Facebook on my last post: one said, “a business which cannot afford to pay its workers a decent wage doesn’t deserve to survive“; the other said “I actually heard from some folks this week making the argument that any kind of volunteer work should be illegal and require the payment of at least the minimum wage plus benefits.” Both of these are common arguments you might hear in response to the AEA proposal, but when you start thinking about them — really thinking about them — the problems surface and it become clear why this proposal must be opposed.

I’m an engineer and a logical thinker. So, in general, should people be able to volunteer their time? Why shouldn’t everyone be paid a decent wage for what they do? On the surface, that makes sense and seems ethical. But what about people who volunteer for your church or synagogue? Should the Sisterhood ladies be paid for setting up an Oneg? The Brotherhood for cooking at a barbeque? It is clear there are some organizations that should accept volunteers. It’s not just religious: consider other charities such as Doctors Without Borders. Their doctors are skilled — and require a certain skillset — and yet are often volunteers or are not paid what they would get on the market. Look at lawyers who volunteer their time for charities, or professional fundraisers who help charities. All of this volunteering is permitted — and in fact, encouraged by our tax code (remember, you can deduct charitable miles).

So, you say, to do this everyone in such an organization must be a volunteer. That’s not true. Consider your church or synagogue. They have paid clergy and paid staff as well as volunteers. Most charitable organizations have paid executive directors. You can have both paid staff and volunteers. So when should a volunteer become paid staff? That’s a great question — and I think the answer is fundamental. One might think the answer is hours: typically a volunteer is not full time. I would tend to think that volunteers should have a cap on the number of hours they may volunteer — but hours does not an employee make. There are many part-time employees. That’s why I’m discounting hours as the factor. I think the real time an employee become necessary is when you can not find a person with the appropriate skill willing to take on the job either unpaid or below market.  Looking at the theatre, there is clearly the law of supply and demand here. There are lots and lots of actors, and depending on the position and the role, you may be able to use a non-Equity volunteers to replace an Equity actor. However, if the role is unique, the answer might be different. Other creatives are not so plentiful, but even then you can often find volunteers willing to take on the task for the experience. Gee, that sounds like interning 🙂

Now you’re probably saying that this means any organization could get around the minimum wage. If you think that, you’re missing a clear distinction. All the organizations I’ve mentioned above are charitable — recognized by the IRS as a 501(c)(3) organization. Their intent is not to make profit; any surplus is to be returned to the community through good work. So lets consider the example of an unpaid intern. There have been recent rulings that unpaid interns in commercial businesses — be they engineering or film and television — are not acceptable.  Yet volunteers are acceptable in charities (and I don’t think I’ve seen a ruling on interns at charities, but they seem analogous to volunteers).

The real factor that should come into play on whether volunteering is permitted should be: is the concern FOR-PROFIT or NON-PROFIT. Yet is it precisely this concern that is ignored by the AEA proposal. The proposal should be that the only companies that could accept volunteer or underpaid actors should be NON-PROFIT theatres. Commercial theatre ventures — even if under 99 seats — should have to pay minimum wage. Yet the proposal, as I understand it, prohibits non-profit theatres from accepting volunteers. That’s wrong, and that should be the main reason to vote “no” and oppose it — it goes against the definition of what a non-profit is.

Once the proposal in this form is disposed of, a new motion should be made to bring in a proper plan. We’ve seen a number out there; I’ve noted the 99 to HAT proposal at Bitter Lemons earlier. The thought experiment behind this post has led to a few additional things:

  • First, the 99-to-HAT notion must be for non-profit theatres. What AEA is proposing may be reasonable for any intimate FOR-PROFITs out there — being FOR-PROFIT, they should have the ability to charge what they believe the market will bear, and have investors who will take the risk of that in exchange for the benefit of a profitable performance. NON-PROFIT and FOR-PROFIT are different beasts.
  • Second, if AEA is truly concerned about the actor, they should have contracts with any theatre — NON-PROFIT or FOR-PROFIT — employing any AEA actor. These contracts shouldn’t be punitive to volunteers, but must protect the working conditions of the actor — breaks, facilities, safety, and other factors. Remember that unions came into being not just to raise wages, but because of incidents like Triangle Shirtwaist, which had dangerous working conditions.

To move to a proposal that can be win – win – win, and that balances the needs of the creatives, producers, and audience, the current proposal must be rejected. Those who have the ability (i.e., the actors and the producers) should then move to create a new committee that has representatives of all stakeholders to establish fair and equitable rules for all. Hopefully, the audience stakeholder can be remembered in this as well.

*: I’m also a programmer, and there the creative urge is the same. When I see a solution to a problem, well, coders gotta code, designers gotta design, and architects gotta architect. I’ve been doing a lot of that the last few months as I’ve been turning my multiyear analysis of NIST SP 800-53 and CNSSI No 1253 into a tool for Subject Matter Experts …. and boy has exercising that muscle felt good. I truly understand the actors, even if I can’t act.


One Reply to “#Pro99: Employees, Volunteers, and the Minimum Wage”

  1. I want to have the choice to volunteer. That’s one of the reasons I’m Pro-99. This one size fits all is going to do more harm than good. I really appreciate your article. Thanks.

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