And the Legal Test of Los Angeles Theater's 99 Seat Plan Has Begun

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The 99 Seat production at the eye of the storm

“Lawsuit? What lawsuits?”

I remember there was a lot of that hue and cry going on when the Re-Imagine LA “manifesto” came out. It was in response to some language in there around the Department of Labor looking over a couple of potential lawsuits against some of the producers working under the 99 Seat Plan. Much of the response was, “What lawsuits? They’re all made up. It’s a Straw Man!”

And now, if you haven’t heard, petitions, or a “wage claim,” if not lawsuits, have been filed on a number of fronts, the most dramatic of course being AEA and LA-based actress Ann Colby Stocking filing against the Odyssey Theater for back wages after having worked in an all female production of Hamlet back in 2015. This is under the auspices of the California Department of Industrial Relations: Division of Labor Standards Enforcement. No actual lawsuit has been filed, but a petition for past wages certainly has and that in many cases is a precursor for more serious legal doings.

And before that there is the ongoing CASA 0101 case and the Shotgun Players case in Berkeley.

But even before that, earlier this year, David Mack – one of the players in this drama as well acting as “advocate” to Ms. Stocking – contacted me wondering whether I’d like to run a story about the first non-union actors filing a lawsuit against a producer in LA Theater – and winning. I looked into it fairly thoroughly, as thoroughly as a blogger working on his own dime could, and frankly, beyond discovering yet ANOTHER unscrupulous producer amongst our ranks named Zaccahrin Thibodeou of Broadway Theatricals, I didn’t find the story all that compelling. Actors were conned, they enlisted the help of the DLSE, aided by David Mack, and some of the damages have been rewarded back to the non-union actors, others are ongoing.

All good and David was right to help. Frankly, I think he continues to get unwarranted blowback on all this. Guy has been working in 99 seat theater for years and was one of the original members of TPLLA. Now he’s being lambasted. It’s sad. While the positives of this creative community mostly outweigh the negatives, the citizens of LA Theater can at times be very selfish, petty and vindictive. All this talk of inclusion and diversity, but when it comes to a differing opinion? Nope.

That’s what happens when you get on the wrong side of the Torch and Pitchfork crowd, David. Trust me, I know. Though it does appear that the TPC is showing signs of fracturing. That’s what happens when the situation extends over almost two years.

But what I found far more compelling with all this, was the sense I got from Mack that there was more to come.

And indeed, more has come. Again, check out the latest from Steven Leigh Morris at @ThisStage.

What my investigation earlier in the year did uncover, however, is that the DLSE is taking seriously claims by actors in this town that they are being used by producers in the 99 seat and less houses. I find it also intriguing that once again the name Ron Sossi is right in the middle of the shitstorm. He has for over a year been the poster child for the supposedly “greedy producers” in LA’s 99 seat community who have grown fat off the backs of actors. There is some legitimacy to this, he has his three spaces over at the Odyssey for a $1 a year from the city and according to Guidestar he makes upwards of 75k a year. However, in his defense, he’s also been a stalwart in LA Theater for 30 plus years.

I’ll leave it to you decide how best to perceive and judge all those facts.

When I contacted DLSE earlier in the year about their involvement with the 99 seat plan and the case I initially investigated, I received this from Paola Laverde, Director of Communications for the Department of Industrial Relations:

Whether any actor is an employee, independent contractor, volunteer or something else under the law, that conclusion can only be made on a case-by-case basis and is a fact intensive analysis.  If after the analysis is completed, an actor is determined to be an employee, then minimum wage would apply, notwithstanding any union affiliation.

Makes sense. Good to know these government offices are working for us, but the case with Ms. Stocking smacks of something far more insidious and nefarious, in my humble opinion.

Check this from the @ThisStage article:

Adding fuel to the long-simmering fire over whether actors working under the 99-Seat Theater Plan are “volunteers,” “independent contractors” or “employees,” actress Ann Colby Stocking has filed a complaint, dated April 11, 2016, with the California Department of Industrial Relations: Division of Labor Standards Enforcement, against Odyssey Theatre Ensemble and its producer, Ron Sossi. Her demand is for over $6,000 — $2,888 for unpaid minimum and overtime wages, plus an additional $2,296 in “liquidated damages,” plus a $36/day penalty from the time of the filing that the demand remains unmet, for up to 30 days.

The claim pertains to a 2013 presentation of Hamlet at the Odyssey, co-produced by Los Angeles Women’s Shakespeare Festival and the Odyssey Theatre, in which Stocking portrayed one of the “players.” (Neither Los Angeles Women’s Shakespeare Festival nor its Producing Artistic Director, Lisa Wolpe, was named in the complaint.)

News of the filing was obtained by @ This Stage from two anonymous sources unassociated with Ron Sossi or anybody else at the Odyssey Theatre. This publication subsequently obtained the case file from the Department of Industrial Relations through the California Public Records Act. The plaintiff’s “attorney/advocate” for Stocking is named as “Artist Magnet/David Mack.”

So the first and foremost question, of course, is why did Ms. Stocking do this show, sign this contract, knowing that she wasn’t going to collect the amount of money that she is now suddenly asking for in retrospect?

My speculative answer to that is: To institute a legal test to the 99 Seat Plan.

But why now?

I have a few thoughts.

Equity just had its national elections and they are also still embroiled in “facilitated discussions” with the Pro-99 plaintiffs in a pending lawsuit over this very subject.

My, again, speculative, conclusion: AEA is all over this. Maybe not directly, but they are lurking and hovering nearby, their hands are in this somewhere, and I would even bet that they are in contact with Ms. Stocking, perhaps counseling, and at least encouraging. This kind of action retains the same stench they’ve left behind during their more public bullying tactics over the last year.

But it’s a serious matter, whomever is involved and however it plays out. This again from SLM, but this time from the Facebook wires where a heated discussion is going on:

If the case goes to a hearing, i.e if it passes DLSE’s test of jurisdiction (unlikely, but possible) , it will mean that a performer, working under the 99-Seat Plan, will have been defined by the Department of Industrial Relations to be an “employee” — not an “Indpendent Contractor” and not a “Volunteer” — which is what this is all about. It’s a trial balloon to challenge the validity of the Plan. To assert that this is just one person’s claim is disingenuous, as it is to argue that it doesn’t potentially affect hundreds of people. The plaintiff is not arguing that she never received payment. She acknowledges receiving payment in check form. She also checked a box accurately claiming she was not working under a union contract. (The Plan is an agreement between the union and its members, not a contract between a performer and a producer.) So David, please stop with the “we don’t know all the facts” diversion. You are the advocate for a plaintiff demanding back wages and overtime for hours listed — in which the plaintiff is positioning herself as an employee.

And this from Travis Michael Holder from the same page:

I just hope this stays in the wind long enough to make anyone wary of working with Miss Stocking. She is a truly gifted actor — but she is proving herself to be a risk to hire. Who has time to worry about someone who appears to be miserable and a desperately needy person looking for validation in all the wrong places rather than being a cooperative participant in an artform that must be uniformly collaborative to succeed. Funny. I always support shows at the Boston Court, where I’ve appeared several times, and anything directed by Michael Michetti (ditto), but I turned down an assignment to review the current GOLDEN DRAGON there because I knew for once I could not be objective enough about the dastardly Mizz Stocking to write an unbiased critique of her work — a first for me in 29+ years reviewing.

Bad signs, but understandable.

If it were me I’d file the Plaintiff’s lawsuit against AEA now, forget the “facilitated discussions,” just do it and let them know that we all know what’s going on here.

If they’re gonna legal test us then let’s legal test them. The DLSE is just doing their job.

But let’s be the ones framing and leading the discussion. Don’t leave it to the government or to the Union working behind the scenes to set the parameters.

Transparency and audacity will win the day.

Or at least reveal what’s really going on here.

A legal Test of Los Angeles’ Theater’s 99 Seat Plan.

Stay tuned.