Executive Director’s Report 2020
Report to Council and Members: May 2020
After 9/11 the first question people would ask each other was “Is everyone okay?” It was the gentlest way of finding out about loved ones lost in the attack, or about people affected by the toxic cloud or the sudden disruption of housing and workplaces, especially in New York. Here we are, in mid-2020, asking each other a similar question, usually framed as a statement of cautious optimism: “I hope you and yours are healthy and safe.”
Of course, many of our members and loved ones and neighbors are not healthy, and no one is completely safe, yet. We have lost too many to COVID-19. Everyone’s life has been upended. The way we work, take care of our families, relate to our friends – every aspect of our lives has been transformed.
Despite these huge challenges, the Writers Guild of America, East remains strong, active, and involved in our members’ work lives. Our members remain engaged in all aspects of the union’s work, looking out for one another and for the industries in which we work. As terrifying as things are in the time of pandemic and economic collapse, I am inspired by this union and its members and employees, and by the labor movement and its members and leaders.
The WGAE during the time of pandemic
We learned very early in this crisis that the WGAE had to be proactive, to plan for the unimaginable, and to be creative and nimble in all aspects of our work. We shifted quickly to work-at-home for the entire staff, which was a real adjustment for a union whose fundamental activity consists of getting people together to build and exercise power collectively. Everyone on staff adapted their work procedures quickly and (more or less) seamlessly.
At first we really did not know how the coronavirus pandemic would affect our members. We knew it was critical to make sure members who report to work in a writers room or a newsroom were protected from infection. As the economy transitioned to full-on downturn, as productions simply shut down, and as newsrooms started to adjust to the imperatives of social distancing and declining revenue, we rapidly focused our energy and attention to learning as much as we possibly could about members’ actual experiences. Were TV and SVOD writers still working, but from home? What protections were employers offering to people who were still reporting to the jobsite – masks, disinfectant, staggered schedules?
First and foremost, all of our representatives (business agents, field representatives, organizers, and others) spent many hours reaching out to Guild stewards, captains, and activists to keep track of what was happening in real time. We could no longer do shop visits but we could do phone calls and emails and Zoom and slack and all of the other digital tools.
Our strategy has included two fundamental principles: gather as much information as possible, and get members engaged in all aspects of the struggle to stay safe and to maintain workplace standards, including pay and benefits. To that end, here is what the WGAE has been up to in response to the COVID-19 pandemic:
NY COBRA subsidy program.
In March we campaigned to get the state government in Albany to reinstate a program that subsidized COBRA premiums for entertainment union members whose health coverage expired. This program had been very successful but had been allowed to lapse during the boom years of production and employment. Many hundreds of WGAE members in New York emailed and called the key legislators and the Governor, and despite a huge budget deficit they succeeded in resurrecting the entertainment union COBRA subsidy program. Many thanks to the Actors Fund, to our lobbyists, and our sister unions.
CARES Act benefits for gig workers.
The next campaign focused on the third phase of the federal response to COVID-19. Working closely with the Department of Professional Employees at the AFL CIO and with our sister unions, including SAG AFTRA, IATSE, and the DGA, we made sure this phase – known as the CARES Act – included protections for gig workers. This includes the many entertainment industry employees who work from gig to gig (like TV and feature writers) and people who typically work, not as W-2 employees on payroll, but as independent contractors (including news writers who “freelance” between jobs). All of these people are now eligible for weekly benefits under the CARES Act, directly and solely because of the enormous mobilization of grass-roots support by union members. More than 1400 WGAE members called and emailed and tweeted in this campaign. The CARES Act also improved unemployment benefits for people who lose their full-time staff jobs in the current crisis. We provided a lot of detailed information about these benefits to WGAE staff, activists, and members, through resources on our website, a well-attended webcast by the National Employment Law Project, and more.
Survey of TV/SVOD/feature writers and the impact of the pandemic.
We needed a more thorough understanding of how the pandemic was affecting members’ employment and their benefits so we crafted a detailed survey for TV/feature/SVOD members. Thankfully, at this point it seems the shut-down in production has not cost WGAE members as many work opportunities as we feared, as people write series and features at home and continue with projects in development. Still, members expressed concerns about whether this will continue with a prolonged production halt, and about the effect on specific types of projects (e.g., pilots and series that were greenlit but that cannot proceed for the time being).
Eligibility for health plan benefits.
We are paying close attention to the possible effect of the pandemic on members’ ongoing eligibility for benefits from the Producer-Writers Guild health plan. We have communicated regularly with the health plan, which is monitoring eligibility carefully. Ultimately, any effort to extend coverage to people who drop out of eligibility will probably require the agreement of trustees appointed by the employers that contribute to the fund, so this is a story still unfolding.
Scripted podcast survey.
One form of scripted entertainment does not require large numbers of people to gather on sound stages, and we anticipate increased production of podcast dramas and comedies in coming months. The WGAE has been exploring this small but growing area of work for more than a year. In April we surveyed members who have worked on scripted podcasts to help improve standards and expand Guild coverage. A summary of the results is set out later in this report.
Workplace concerns in news.
Working with our activist members in broadcast and digital news, the WGAE crafted some best practice demands to ensure that members can stay safe while working during the pandemic. In brief: allow people to work from home as much as possible; apply OSHA and CDC practices to keep workplaces safe and healthy; use layoffs as a last resort and negotiate with the union before taking any actions. Our sister unions in the Department of Professional Employees have agreed that these principles made sense for all news employees.
Federal stimulus for the news industry.
The economic collapse that has accompanied the coronavirus pandemic has hit the news industry with full force. For better or worse, news is funded largely by advertising. When the economy shuts down, so does advertising. We have experienced far too many layoffs and furloughs at our digital news shops, plus demands for pay cuts and pay freezes. On the broadcast side, per diem members are facing cuts in hours of work (we will be sending a survey to these members in a few weeks to get a more detailed picture). To try to shore up the industry – at a time when democracy demands more professional journalism, not less – we have engaged in a campaign with the DPE and our sister unions to persuade Congress to include support for the news industry in the next phase of the federal COVID 19 response, so-called “phase four” (the CARES Act was phase three). Our demands are straightforward: All news organizations should be eligible – broadcast, digital, and print. The federal financial support must go to keeping people on payroll (or getting them back from layoff or furlough); not a dime for executive bonuses or stock buybacks. We have spent untold hours in phone calls and e-meetings with staffers on the Hill and with Representatives directly (including Speaker Pelosi and Reps. Clarke and Pingree), making this pitch. They all understand the importance of preserving these jobs, and of preserving democracy by ensuring that people can do the investigation, analysis, writing and producing, and distribution of real, reliable news. Otherwise, the only source of information would be . . . tweets. More than 1200 people have signed the WGAE petition in support of these demands, and we are about to mobilize our members to email and phone their representatives. Rep. Clarke has been particularly supportive.
Cutbacks in digital media.
At each of the digital news media shops where the employers have proposed layoffs, furloughs, and other cuts, the members in the shop got active. Working with Guild staff, committees communicated with the members to determine people’s priorities – Save jobs? Enhance severance? Extend health benefits? Then they met with management to demand what the members themselves wanted, and in every case succeeded in improving on what was initially rolled out. This is not to say that people in these shops avoided all pain – but they did shape their employers’ response to the pandemic in ways that addressed the members’ actual needs and concerns.
Here is one of the central lessons of the WGAE’s work since the COVID-19 pandemic struck: collective action works.
It really makes a difference when the union and our members identify what needs to be done and craft a strategy to get it done – and when members get engaged directly by calling and emailing their representatives, or meeting with their employers, or signing petitions or recruiting their colleagues. This is the power of the union, even in times of crisis.
Minimum Basic Agreement
Beginning in the summer of 2019, WGAE staff and elected leaders started preparing in earnest for negotiations for a new Minimum Basic Agreement, the contract that sets minimum compensation, residuals, health and pension contribution rates, and the many other terms of conditions of employment for writers of television, subscription video on demand (SVOD), feature film, and other forms of what we call freelance work. (“Freelance” being the term for working series-to-series, pilot-to-pilot, feature-to-feature; not to be confused with being an independent contractor like a “freelance” journalist.) We met with members at TV writers rooms, held formal and informal discussions with SVOD and feature writers, analyzed the pressing issues faced by comedy-variety writers, talked about the impact of TV mini-rooms, recruited a smart, knowledgeable group of active East members to serve on the joint WGAE/WGAW negotiating committee, and prepared to make significant gains at the bargaining table with the AMPTP.
We met several times with the broader freelance membership to hear their concerns and to describe what seemed to be top priority issues in these negotiations. Discretion precludes me from writing those priorities in a report that might make its way into the inbox of an AMPTP executive or two, but our agenda was aggressive and focused on the issues our members cared about most.
Then the COVID-19 crisis hit. Our bargaining agenda is still smart and achievable, but negotiations will be starting later than usual. The MBA was set to expire on May 1. It has now been extended until June 30. Negotiation will begin, with remote digital participation, in mid-May. In the coming weeks we will organize meetings with members to discuss the bargaining issues in greater detail. Our MBA captains have been meeting and they are ready to do whatever needs to be done to ensure we get the best possible contract.
The agency campaign
It has been more than a year since the members of the WGAE and the WGAW voted overwhelmingly to refuse to be represented by any talent agency that was not signatory to a Guild agreement. This is a remarkable, unprecedented show of solidarity.
The WGAW, WGAE, and three of the big four agencies are also pursuing litigation. The Guilds, and some members who have been affected by packaging, allege that the agencies have violated their fiduciary duty and state and federal anti-trust law (and some additional statutes) by engaging in packaging. The agencies allege that the guilds have violated anti-trust law by challenging the practice. There has been motion practice and discovery has commenced. It is unlikely that there will be a definitive decision before the end of the year.
At this point, essentially all of the talent agencies have signed a Guild Code except the big four. We will provide updates as meaningful developments arise.
Podcasting
We talk a lot about Streaming (or “Subscription”) Video on Demand; what about Streaming Audio on Demand? That is, podcasting. The audience for both nonfiction and scripted podcasts appears to be growing exponentially, and producers and distributors are increasingly eager for new content. The WGAE and its members are actively exploring the role of the union and of collective bargaining as the opportunities for creative, paid storytelling appear to be on the rise.
On the organizing front, the WGAE won representation rights at Gimlet, one of the largest podcast production companies in the United States, just as the company was acquired by Spotify. Spotify appears to be expanding its business model to offer customers non-musical audio content, including many nonfiction podcasts written and produced by Guild members. Negotiations for a first collective bargaining agreement are underway.
The WGAE also organized the writer-producers at The Ringer, including both writers and editors of web articles and writer-producers of a host of popular podcasts. After we began negotiations for a first contract, The Ringer was purchased by – yes, Spotify. As at Gimlet, negotiations continue.
Perhaps the most intriguing development in the podcast world in the last couple of years has been the advent of scripted podcasts – drama and comedy series for the ear. WGAE members have reported getting pitched by producers to create series, and the union quickly immersed itself in the business and creative dynamics. Our goal is to shape the models as they develop and to ensure that writers’ economic and creative interests are protected. We met and spoke with many writers and producers with experience crafting and distributing scripted podcast series, and created two podcasts of our own to explore the issues. And we crafted a model podcast agreement. All of this is available on our website.
Of course, one of the inspirations for this flurry of interest in scripted podcasts is the possibility that an audio drama (or comedy) will generate enough buzz to be picked up and reused as a TV or SVOD series – a la Homecoming. The writers and producers we talked with cautioned against excess enthusiasm, advising writers to craft the very best audio programs they could rather than just creating ultra-low-budget proofs of concept that do not work in the podcast format.
In recent months a number of WGAE members on both coasts have convened to discuss deal terms and industry trends. Working closely with them we crafted a survey about these issues for Guild members – and for non-members who have been involved in scripted podcasts. A complete summary of the survey results is available on our website. Briefly:
We got detailed information about 99 scripted podcasts – a third of which were self-funded and two-thirds of which were partly or completely funded by third parties. About 40% of the latter were funded by networks and services like Audible and Spotify. About half of the projects funded by these services or by production companies/PODs were distributed exclusively on those services, while self-funded projects tended to be available on multiple services. Series and episode lengths varied but the average and median were 10 episodes per season, 30 minutes per episode. Where the project had more than one writer, the average and median were three writers.
For 3rd party-funded projects the average and median overall budget was $100,000. The average writing budget was $29,500; median: $15,000. Writer pay for self-funded projects was mostly aspirational. For third party projects, lump sum or installment payments averaged $20,000 for a series (median: $28,260). Some people got script fees in the $2000+/episode range.
The most prevalent network/services were Apple, Spotify and Stitcher. Audible distributed a lot of third-party projects.
We will continue to gather information and use it to improve standards – and to pursue Guild coverage of scripted podcasts.
Success at CBSN
Last year an overwhelming majority of writer-producers and graphic artists at CBSN signed cards authorizing the WGAE to represent them for collective bargaining, and the company recognized the union voluntarily. Thus, CBSN became the first live anchored digital streaming news network to be unionized. As the broadcast news business becomes increasingly platform-agnostic (that is, as news stories are distributed on television, computer, and smartphone screens), this is an important extension of Guild strength.
In late February 2020 we finalized the first collective bargaining agreement with CBSN. Thanks to the solidarity of WGAE members generally, the hard work of a dedicated negotiating committee, and active mobilization by members in the bargaining unit, we achieved substantial gains in all of the areas we identified as priorities.
The agreement provides substantial improvements in a range of economic and non-economic areas, including night shift differential, short turn-around pay, standby pay, and extra pay for long work weeks for all employees. It provides a series of upgrade payments for employees assigned to perform work ordinarily performed by people in higher-paid titles, extra paid days off, a system for getting paid for unused comp days, holiday pay, and substantial severance pay. It includes a commitment to recruiting a more inclusive workforce and a diversity committee to address these issues on a regular basis, plus committees to address working conditions and workload. Employees in the lower-paid classifications will receive time and a half overtime plus penalties for working through meal periods. The agreement streamlines current job titles and includes clear job descriptions and minimum pay rates for all titles. On top of all this, everyone will receive across-the-board pay increases of 3% per year.
This proves that a mobilized and engaged membership, and a tenacious focus on priority issues, can really make a difference in the workplace. Collective bargaining works.
Equity and inclusion
In June 2019 the New York State Senate and Assembly adopted the TV Diversity Tax Credit, which will modify the state’s successful production tax credit to provide an incentive to hire women and people of color to write and direct television in the state. Many thanks to our sponsors, Senator Robert Jackson and Assemblymember Marcos Crespo, and our partner in the effort, the Directors Guild of America. The goal of the legislation was two-fold – one, to put money at the point of hire to provide opportunities for more diverse writers and directors to build successful careers, and, two, to broaden and deepen employment opportunities for all writers in New York so the industry can grow and thrive here.
After intensive mobilization by many hundreds of WGAE members who made phone calls and sent emails and signed petitions, Governor Cuomo finally signed this historic legislation, but with an important modification: the tax credit will automatically take effect once a state-funded “disparity study” is conducted and demonstrates that the percentage of women and people of color actually employed is less than the percentage available to work.
The WGAE immediately got to work analyzing the most effective way to conduct a disparity study, speaking with dozens of members, experts, and academics to gather insights into how best to measure the “availability pool”. Ultimately the state’s Department of Economic Development will develop a request for proposals from consultants interested in conducting the study (and the WGAE and our colleagues at the Directors Guild of America will have a lot of input), and a consultant will be hired to do the work.
Unfortunately, funding for this study was not included in the current Albany budget. Why? Because the COVID-19 crisis has left a hole in the state budget of anywhere from $10 billion to $15 billion. This was a year for austerity, not progress. But the legislature is slated to reconvene in the Fall. Assuming the fiscal condition has not improved by then, we know our legislative sponsors and the Governor are committed to funding the study next year.
Earlier this year we completed the second round of the Made in New York Writers Room fellowship, in partnership with the Mayor’s Office of Media and Entertainment and the City’s office of Small Business Services department. Three hundred New Yorkers submitted pilot television scripts, which were read by Guild members who offered detailed notes. The finalists received six months of paid mentorship with Guild showrunners, and an enormous array of other workshops and other programs to deepen their skills, learn how to build their careers, and enhance their access to industry decision-makers.
The WGAE is now partnering with Film Nation to present a mentorship program for aspiring feature writers. Although the applications, reviews, mentoring, and other programming must now be conducted “virtually”, the fellows, producers, and the Guild members who have volunteered their time are very enthusiastic about this effort.
Sex, gender, and power in the workplace
In our ongoing project to combat sexual and racial harassment and other forms of misconduct, a working group of WGAE showrunners crafted a statement on the workplace environment and sent it to Guild showrunners, suggesting that they present it to their rooms. It said:
In recent years there have been a lot of conversations about hostile work environments and what employers, writers, and unions should do about them.
Fundamentally, it is the employer’s legal responsibility to ensure that you are all free to do your work in an environment that is free from sexual harassment and other misconduct. I want to emphasize that this is also the policy of this show. We will not tolerate harassing, hostile behavior that disrespects people on the basis of gender or race or anything else.
Our union, the Writers Guild of America, East, is committed to working with us on these issues. If you have experienced or witnessed inappropriate conduct, you can contact a Guild rep. You can call or email Ann Burdick, the Guild’s General Counsel, or Geoff Betts, the Director of Contract Enforcement and Credits. Of course, you can also contact the company’s human resources department.
The Guild’s website has a guide that discusses the legal principles, counseling services, and other resources.
In the past several years we have negotiated anti-harassment language into all of our collective bargaining agreements covering news employees, broadcast and digital. Several of these provisions are ground-breaking in their detail and scope and we hope they can serve as models for future negotiations.
TV mini-rooms
The WGAE continues its exploration of how the “mini-room” affects members who write series for television and for SVOD. There is not a precise definition of a mini-room, but its characteristics are a relatively short work period (perhaps 6 to 8 weeks) with a relatively small number of writers (perhaps a half dozen). Typically, people work at or close to minimum, and they are often not hired to craft scripts for the episodes that are ultimately produced.
In 2019 we convened a roundtable of members with experience working in (or in some cases running) mini-rooms. We had prepped a half dozen members to describe how rooms were working – employment patterns, pay rates, producers’ motivations, what the Guild can or should do to protect members’ interests. We have shared these insights in connection with upcoming MBA negotiations. We anticipate the rise of the mini-room will present challenges to the Guild and its member for years to come.
Digital news organizing
The WGAE now represents more than 2000 writers, editors, producers, graphic artists, and others who work for digital-native news/media companies. Our aggressive, effective campaign started in earnest five years ago, and it has transformed the way people in digital media work. It has proved the effectiveness of collective bargaining, and has offered a jolt of energy for the labor movement generally.
The largest current campaign involves about 500 employees at Hearst, which historically has been deeply hostile to unions. True to form, Hearst refused to recognize the Guild voluntarily (unlike the two dozen other digital media companies that respected their employees’ decision to unionize – albeit sometimes after considerable public pressure). Instead, the company chose to spend many hundreds of thousands of dollars at the National Labor Relations Board, challenging our right to represent the employees, interposing every conceivable objection. Among the absurd contentions was the ostensible existence of a tiny company union that represents – well, no one, as far as anyone can tell. After an extraordinarily long hearing with huge numbers of witnesses and legal arguments, the case remains at the NLRB’s Manhattan Region. It is our hope and expectation that the Region will issue a decision and direction of election shortly, after which the Hearst employees can vote by mail, demonstrating for a second time that they want to join with the WGAE and to bargain collectively. Even the most determined – and well-funded – employer is no match for solidarity and an experienced union team.
Regulating the “freelance” economy
As more and more working people find jobs in the gig-based “freelance” economy – think of Uber and Door Dash and contract jobs at Amazon – political leaders are finally starting to rethink how laws governing unemployment insurance, workplace injuries, minimum pay rates, and collective bargaining rights should apply. The first major enactment was a California bill called “AB 5”, which formalized a streamlined definition of “employee” to protect gig workers against being misclassified as “independent contractors” deprived of all legal protections on the job. One of the features of AB 5 was a requirement that freelance journalists be categorized as employees once they submitted at least 35 pieces to a particular publisher. It’s fair to say that opinions in the freelance journalist community were mixed, and when the New York legislature and the U.S. Congress started moving towards similar legislation, the WGAE decided to do some thinking and talking with our members about what the best approach might be.
First, some nomenclature. Traditionally, the Guild refers to our TV and movie writers as “freelancers” because they are employed on a show-by-show or movie-by-movie basis. But they are unequivocally treated as employees, with all the rights that entails. (The same is true of part-time and per diem members in broadcast news, even those who are sometimes called “freelance”). In digital journalism, we represent people who are on payroll as employees.
About 1700 of our current members work primarily for digital news companies like HuffPost, Vox, and Vice. Although we represent these storytellers only in their capacity as employees, a lot of them have also worked as “freelance journalists” between gigs as Guild-represented employees.
Legislation has been discussed that would change or tighten the standards for determining whether a worker should be classified as an “employee” instead of an “independent contractor”. A couple of approaches have been suggested – one being the ABC test, the other applying the Professional Standards test with respect to freelance journalists and others.
Under both tests, a reviewing tribunal would determine whether the worker is engaged in the same type of work (or same “trade, occupation, or business”) as the company engaging that worker’s services. Freelance journalists do journalism, as do the companies that engage them.
In a recent survey of our digital news members, about a quarter of them said they had worked exclusively “freelance” in the last three years – that is, had done this work while not also employed by a publisher or other media company (Another third did some freelance work while also employed.)
Based on these survey results, it would appear that a fairly significant number of our members who worked as freelance journalists in the last three years might be reclassified as “employees” under either version of the tests being considered by legislators. Most do not have significant control over their rates, and publishers have substantial influence over the content of their work. Some members have been engaged by a relatively small number of publishers to do freelance work, but some have been engaged by a lot of publishers (nearly a third reported doing work for more than 25 in the last three years). Some respondents said they do relatively large numbers of relatively short articles and videos, but a lot of them do longer pieces, often based on ideas they pitch (as opposed to selling works they have already completed). According to our survey results, it is very rare for freelance journalists to retain the copyright to their works.
Nonfiction television
Building union density and power for writer-producers in nonfiction television remains a long, painstaking process but we made substantial gains in the last year. The WGAE negotiated a truly extraordinary first contract at Vox Entertainment, winning groundbreaking provisions on job security, paid time off, workplace justice and inclusion, journalistic integrity, and contributions to the Entertainment Industry Flex Plan. Importantly, the bargaining unit includes showrunners, an important source of strength as we continue to organize this part of the industry.
Unfortunately, in January NBCU announced it was shuttering Peacock Productions, a relatively large unit where we had concluded negotiations a year earlier. At the same time, the company announced it would do very similar nonfiction production work at a “new” operation and the WGAE launched into investigation mode. We filed unfair labor practice charges against the company at the National Labor Relations Board because we suspect the company is simply continuing its Peacock operations under a different name without WGAE-represented employees. The NLRB is investigating our charges and we are keeping the pressure on.
The broader industry-wide organizing campaign continues, with a focus on companies that produce nonfiction series for Netflix. Many showrunners have joined the campaign, and we continue to offer training programs (including showrunner training) funded by the Consortium for Worker Education.
The COVID-19 crisis has shuttered most nonfiction television production (although not all of it). Because nonfiction writer-producers mostly work from gig to gig, and do not work when their shows are dark, this has meant unemployment for large numbers of people, both Guild members and not. The WGAE industry-wide nonfiction committee has crafted a petition aimed at the networks and streaming services that depend on nonfiction series. The petition demands that the networks and streamers offer support to the people who do the work.
Lowell Peterson