Lights! Camera! Class action? If you’re in the motion picture industry, you might soon join a cast of thousands: a class action against your employer for serving cold food. Wage Order No. 12 of the Industrial Welfare Commission (IWC) requires a motion picture industry employer to provide its employees with hot meals and drinks if they have to work after midnight. But show biz is where the “reel” hunger games take place. That’s because employees in the motion picture industry have to wait a longer to go on a meal period than employees in most other industries. If you’re in show biz, here’s what you need to know about meal periods.
I. That’s Show Biz: The “Motion Picture Industry” and How to Tell If You’re In It
Wage Order 12 defines the “motion picture industry” as “any industry, business, or establishment” that is either: (1) “operated for the purpose of” motion picture or television film production[s]” or (2) “primarily allied” with such productions.1 The making of a motion picture can be for any purpose (e.g., entertainment, commercial, religious, or educational) and by any means (e.g., film, tape, or otherwise).2 The IWC’s definition of the “motion picture industry” is so broad that it can even sweep up someone who makes a YouTube video with his cell phone. That’s show biz.
The Wage Order doesn’t say when someone can tell whether his employer is only “allied” with a production. But an analogous provision in the Unemployment Insurance Code provides that an employer is “allied” when: (1) he’s “in an industry closely allied with, and [his] work is integral to, a …production company in the development, production, or post-production of a motion picture (excluding the distribution of the completed motion picture and any activity occurring thereafter)”; and (2) he hires from the “same pool of craft and guild or union workers, actors, or extras” as a…production company.3
II. The “Big Picture” About Meal Periods in Show Biz: Hot Meals and Cold Comforts
In most industries, if a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 a.m., an employer must make facilities available for “securing” hot food and drink or for heating food or drink and provide a suitable sheltered place in which employees can consume such food or drink. In the motion picture industry, an employer must provide all nonexempt employees with hot meals and drinks if they have to work after midnight, except in the case of “off-production” employees who are regularly scheduled to work after midnight.4 Off-production employees have to go to Jack in the Box.
Unfortunately, the IWC seems to differ from the rest of the world about when something is “hot.” In point of fact, Wage Order 12 requires a motion picture industry employer to maintain a “heated” room for which employees may “retire for warmth” if the nature of their employment requires that they work in temperatures of less than 60 degrees.5 But the temperature in the “heated” room need only be 68 degrees. If a “heated” and “hot” mean the same thing, a motion picture industry employer only has to heat up the food and drinks to 68 degrees. That’s room temperature.
But the right to a “hot meal” can be a cold comfort. In most industries, a nonexempt employee gets a 30-minute meal period after five hours of work and a second 30-minute meal period after 10 hours of work.6 But show biz is where the “reel” hunger games take place. That’s because Wage Order 12 entitles a nonexempt employee to a meal period after six hours of work and a second meal period no later than six hours after the first one ends.7 In other words, he might work more than 10 hours and only get one meal period. Moreover, Wage Order 12 prohibits a meal period longer than one hour.8
III. When Does the Hand of Justice Give an Employer Two Thumbs Down?
If a motion picture industry employer requires an employee to work during a meal period or fails to provide him with a meal period “in accordance with state law” – including Wage Order 12 – the iron hand of the law will give the employer two thumbs down.9 That law, Labor Code section 226.7, will require the employer to pay the employee an additional hour’s pay at his regular rate of compensation for each workday that the employer fails to provide him with a meal period “in accordance with state law.” That means the employee will get an hour’s pay if his employer serves him food at room temperature.
But employees and employers in the motion picture industry are free to contract around the the special meal period rules. Labor Code section 512(d) establishes a carve-out for union employees if their collective bargaining agreement (CBA): (1) provides for meal periods and (2) includes a “monetary remedy” if the employees don’t get meal periods as the CBA requires.10 Thus, the special rules can still apply to a SAG/AFTRA member if the CBA doesn’t provide him with a “monetary remedy.” But the law doesn’t require that the CBA’s remedy be greater than or even equal to the statutory remedy. That’s show biz.