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As stories of toxic and abusive work environments frequently make the rounds in the
animation industry, it’s more important than ever for animation workers to know
their rights as employees in the workplace.
The U.S. Congress and the many state legislatures have all passed several laws
touching on the relationship between an employer and an employee. While the
following doesn’t try to be a comprehensive study of what an employee’s rights
might be, it hopefully gives a general overview of what American federal law
recognizes as an employee’s rights while working in the U.S.
Remember, too, that what a federal judge might rule under federal law might differ
from what a state judge might rule under a state employment law. In May 2018, the
California state Supreme Court adopted a new test to determine whether an
“independent contractor” is actually an employee. That test looks at how free the
worker is from the control of the employer while working, whether the worker and
the employer both do the same kind of work, and whether the worker is independently
established and doing the same kind work for others. Although it’s too soon to be
sure what effect this new test will have, early reactions predict significant
consequences for the so-called gig economy, where independent contractors do part-
time or short-term jobs for companies but have not been classified as employees.
Artists, familiar with the way the animation and vfx industry hires and fires based
on immediate production needs, might be affected as well.
Although only the employee is protected by federal employment law, all is not lost
for the independent contractor. For example, the employee does not generally keep
the copyright to work created for an employer – whereas the independent contractor
typically does (unless, of course, the contract between them provides otherwise).
Unions
Unions developed in large part in reaction to the Industrial Revolution, as society
transformed from an agricultural foundation to an industrial one. Industry of
course resisted unions, and in certain cases, striking workers were even prosecuted
as criminals conspiring to raises wages.
In 1935, Congress passed the National Labor Relations Act, also known as the Wagner
Act, firmly establishing protections for the right to collective bargaining –
meaning, labor unions can negotiate with a company’s management on behalf of its
members for better wages and working conditions.
The law also created the National Labor Relations Board, which enforces the law,
and prohibits employers from interfering with unions, from retaliating against
employees who join unions, and from refusing to negotiate with a legally-
constituted union authorized by its members to negotiate with the employer.
Nonetheless, efforts are underway in both North America and Great Britain to change
this dearth of union representation. In the U.S., IATSE, one of the major unions in
the entertainment industry, representing editors, designers, and makeup artists,
among others, has posted online arguments for unionization in the visual effects
industry and promises “to assist working people in the visual effects industry [to]
speak together to make their working lives better.” Such union communications
suggest there are workers within visual effects studios attempting to organize
their shop as a union. Because of the sensitivity of the issue, however, employee
organizers often seek to maintain anonymity.
In the U.K., too, ongoing unionization efforts led by visual effects artists at
VFXForum.org argue the benefits of the BECTU media and entertainment union, which
already represents over 40,000 workers in the British broadcasting, film, theater,
and television industries. Notably, the effects artists point to the benefits of
American animation artists represented by IATSE’s Animation Guild as inducement for
union representation for British visual effects artists.
Meanwhile, in Vancouver, Canada, a band of animation artists have formed the Art
Babbitt Appreciation Society to make the case for unions and prevent situations
similar to what happened to workers on the animated feature Sausage Party.
These workers recognize that they cannot depend solely on the government to protect
their rights and believe that together they are stronger than they are
individually. Employers, naturally, argue that the increased costs in meeting union
demands imperil employment. But at a time when American unemployment is at historic
lows, such arguments perhaps hit with less force than before.
So what laws might an employer break? While states have their own laws, the U.S.
Congress has also passed significant laws governing employer and employee
relations.
The Civil Rights Act of 1964 prohibits discrimination and retaliation based on
race, color, religion, sex, and national origin – but applies only to employers of
15 or more people. Termination, then, by such an employer and for reasons based on
such discrimination is against the law.
The Age Discrimination Act of 1967 added age to the list of protected categories,
and the 1990 Americans with Disabilities Act did likewise for those qualified
persons with mental and physical disabilities.
Along with prohibitions against certain kinds of discrimination, employers may not
terminate an employee “in violation of public policy.” These prohibitions are
typically state laws, rather than federal, and generally protect employees in four
situations: (1) refusing to commit an illegal act; (2) exercising a statutory right
(such as claiming worker’s compensation); (3) completing a public obligation such
as jury duty; and (4) blowing the whistle on employer wrongdoing.
If you are terminated, and you don’t have any of the above claims against your
employer, then you likely will want to apply for unemployment insurance benefits.
Not all unemployed workers are eligible for unemployment insurance benefits.
Different states may have different requirements. Generally, recently-unemployed
workers are ineligible for benefits if, among other things, they leave their
employment by choice, if they were terminated due to their own willful misconduct,
if they are only part-time workers, or if they no longer are searching for new
work.
The reasoning behind providing unemployment benefits was to help workers search for
new employment that utilized their skills and experience, rather than forcing a
laid-off worker to take the first available job for financial reasons.
The current federal minimum wage is $7.25 per hour – but many states and counties
have their own standards. California’s minimum age, for example, is $12 per hour
for 2019, and will increase by $1 per hour each year until it reaches $15 per hour
in 2022. New York’s minimum wage is currently $11.40 per hour, increasing by 70
cents per year until 2021, and then by the rate of inflation until it reaches $15
per hour.
Not all employees are covered by overtime rules. In fact, the FSLA effectively
exempts animators and other creative artists by excluding professionals whose work
“require[es] invention, imagination, originality or talent in a recognized field of
artistic or creative endeavor.” Likewise, California exempts professional motion
picture employees from overtime and minimum wage requirements.
Importantly, both the harasser and the employee can be either male or female, and
the harasser can be a supervisor, a co-worker, or even a client or customer.
The 1964 Civil Rights Act additionally prohibited discrimination on the basis of
race, color, religion or national origin. In 1967, Congress passed the Age
Discrimination in Employment Act, prohibiting discrimination in hiring, promotion,
wages and termination against those 40 years old or older, and in 1990, Congress
passed the Americans with Disabilities Act, prohibiting employers with 15 or more
employees from similar discrimination against those with disabilities, which the
law defines as those with physical or mental impairments that “substantially
[limit] one or more major life activities.”
Intellectual property
Intellectual property rights to employee creations and inventions, including
copyrights and patents, are generally considered the property of the employer
rather than the employee.
Where the work includes artistic and literary creations, the “work made for hire”
copyright doctrine says that where an employer hires an employee to create a
certain work, the copyright belongs to the employer. So character designer Bob
Givens, despite designing Bugs Bunny, had no copyright to his creation – Warner
Bros., his employer, does.
Similarly, for more scientific inventions, such as, for example, a multiplane
camera or a realistic surface simulation in computer animation, the patent belongs
to the employer – so, for these examples, Disney or Pixar rather than Bill Garity,
or Anthony David DeRose and Michael Kass.
For these reasons, and to avoid confusion and conflict, employers frequently
include an assignment provision or a release in their contracts with certain
employees, whereby all rights to their inventions and creations are assigned or
released to the company. As Phil Tippett told Cartoon Brew regarding the
development of the famous go-motion technique used in The Empire Strikes Back, “We
all signed releases for whatever we invented…and George [Lucas} footed the bill.”
Even if the employee manages to retain the patent, companies will often have what
is known as a “shop right” – the right to use the invention despite the employee
owning the patent.
Because the “work made for hire” and “duty to assign” doctrines apply to employees,
however, independent contractors retain their rights to their work (except where
their contract with the company says otherwise). Companies will often include an
assignment provision in their contracts whereby all rights to their inventions and
creations are assigned to the company.
With that said, even conscientious employees must rely on what is known as tort law
to protect their privacy rights when working for a private employer. (Public
employees fall under different protections).
Four different invasion of privacy torts are generally recognized by the courts:
(1) intrusion upon an employee’s seclusion; (2) false light; (3) appropriation of
name or likeness; and (4) giving publicity to private facts.
Intrusion upon seclusion is the primary issue where employee privacy is concerned.
Generally, where an employee has a reasonable expectation of privacy, such as a
locker, phone calls, emails, and computers, then an employer is prohibited from
invading such spaces. However, to protect themselves, employers often issue
employee handbooks that expressly state emails and other electronic communications
are controlled by the employer – thus making an expectation of privacy by the
employee unreasonable. Courts have also found that employees have no reasonable
expectation of privacy when sending emails on company computers.
Additional laws, such as the Wiretap Act, which bans employers from listening to an
employee’s phone calls without at least one of the parties’ consent, and Electronic
Communications and Privacy Act, which bans the interception or disclosure of
electronic communications, provide additional protections. However, certain
exceptions apply, such as allowing for employers to monitor computer use.
Read More:
Overtime Sexual harassment Union
Brian Gabriel
Brian Gabriel More Articles
Brian Gabriel is a writer covering legal issues for Cartoon Brew.
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