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HK’s Kirstin Muller addressed the new wave of wage and hour class action lawsuits in the entertainment industry.

The text of the article is below:

Productions facing wave of wage and hour actions

Nothing is worse than a bad sequel: They are expensive and provide little to no return on investment. Unfortunately for the entertainment industry, productions in New York City have become the focus of repeat wage and hour class actions that seem to play out just like bad sequels.

The latest, filed in the U.S. District Court for the Southern District of New York, seeks to bring a collective and class action under both the federal Fair Labor Standards Act and New York Labor Law for minimum wage and overtime violations. Pellot v. Paramount Pictures Corp., 16-00463 (Jan. 21, 2016). Four parking production assistants (PPAs) working on various movies since 2013 allege that they worked around the clock without proper pay on motion picture sets to “secure sets, lots, and streets throughout the New York metropolitan area” for productions including “Noah,” “Birdman,” “Black Swan,” “Gone Girl,” and “The Wolf of Wall Street,” among others.

The plaintiffs’ law firm has filed a series of lawsuits on behalf of production employees against Paramount and other studios, distributors, payroll services and production companies since 2011 with some common plaintiffs. Other defendants in earlier suits include Fox Entertainment Group Inc., NBC Universal Digital Solutions LLC, Sony Pictures Entertainment Inc., Warner Bros. Television, and HBO Films. See Leach v. NBC Universal Television Group, 15-07206 (S.D.N.Y.), and Leach v. Warner Brothers Inc., 15-07208 (S.D.N.Y.), both of which are still pending. The first suit in this series, filed by plaintiff Corey Leach in 2011, was dismissed in 2012.

Besides Paramount, the Pellot suit also names Nickelodeon Movies Inc., Platinum Dunes Productions, Gama Entertainment Partners, Mednick Productions, Heavy Metal Productions LLC, Regency Film Enterprises Inc., Protozoa Pictures Inc., Disruption Entertainment Inc., Red Granite Pictures Inc., Appian Way Productions, Sikelia Productions Inc., Emjag Productions II Inc. and 40 Does. It alleges Paramount and the other defendants are joint employers that formed a “single integrated enterprise.”

To proceed with their class actions, the plaintiffs must show they can meet the requirements of Rule 23 of the Federal Rules of Civil Procedure. In particular, they must show (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. But broad class actions have become more difficult to mount since the U.S. Supreme Court’s 2011 decision in Wal-Mart v. Dukes, 564 U.S. 2541. Dukes made class certification even more difficult, finding that the certification of a nationwide class of over 1 million Wal-Mart employees did not meet the commonality requirements of Rule 23 since the plaintiffs could not demonstrate that Wal-Mart had a nationwide policy of discrimination. Rather, the court said, Wal-Mart had a policy against discrimination while the various managers of its thousands of stores had discretion in making employment decisions – meaning the class lacked common questions of fact.

In the Paramount case, the named plaintiffs seek to represent, “[a]ll PPAs (or other employees performing substantially the same job duties and responsibilities under other nomenclature), employed in the New York metropolitan area, who worked in excess of forty (40) hours in a given workweek during the FLSA statutory period on the production of a film, motion picture or movie produced by Defendants or their affiliated entities.” The plaintiffs also want to represent a similar class going back six years for violations of the New York Labor Law. They contend that the New York class will contain over 500 PPAs.

Like the Dukes plaintiffs, the PPAs in Pellot will have a high hurdle to show common questions of fact existing among this disparate class involving numerous defendants with varying employment practices. Among the many claimed violations of New York laws in the complaint, the most difficult to defend are those relating to off-the-clock work and the allegation that the defendants may have, “reduced members of the New York Class’s actual hours worked each pay period in an effort to circumvent overtime pay requirements.” As in California wage and hour collective actions, these claims are challenging to defend because they rely largely on testimonial evidence – going beyond and casting doubt on the employer’s existing time records.

Still, the PPAs claim they must work around the clock to secure production sites for filming. They say they must be onsite during inclement weather and during set shut downs. They say defendants require them to work such long hours that they are given inadequate access to restrooms unless “the production is in the midst of filming,” and that they must use bottles and buckets in their cars or “pay local businesses” for their bathrooms. In addition, the complaint alleges that PPAs must run their cars 24 hours a day for heat and air conditioning when they “work in extreme weather.” They allege that their flat rate of pay per shift of $140 to $160 for each 12-hour shift could not cover the defendants’ minimum wage and overtime obligations, claiming they each worked between 60 and 100 hours per week.

Might we see similar litigation in Los Angeles? Although California has rigorous minimum wage and overtime standards, some of the tasks alleged to have caused the long working hours and poor conditions, such as around the clock work to find and hold parking spaces, may be unique to productions in New York City. Indeed, in Los Angeles, the city works with productions to perform many of the functions targeted by the Paramount suit. Nevertheless, productions should be aware that these suits are being filed ever more frequently, and ensure their employment practices won’t expose them to costly class action litigation.

Kirstin E. Muller is a partner with Hirschfeld Kraemer LLP, based in the firm’s Los Angeles office. You can reach her at KMuller@hkemploymentlaw.com.

Originally published in the Los Angeles/San Francisco Daily Journal, February, 11, 2016. Copyright 2016 Daily Journal Corporation, reprinted with permission.