Employment Law 101: Hollywood Edition

While I most often write on Law Law Land about copyrightsInternet issues, and various things Hollywood, the bread and butter of my practice is employment litigation: more specifically, representing employers who are sued for wrongful termination, discrimination, sexual harassment, and/or wage and hour claims. In California, employment laws tend to favor employees, and like any employer, Hollywood employers are vulnerable to employment lawsuits when they don’t cross their T’s and dot their I’s (and sometimes even when they do).

The Hollywood employment lawsuit du jour was brought against MTV by a former employee on the show The Hills. Do you remember that trip to Costa Rica the cast took for the 100th episode of the show? Yeah, me neither — as much as I love me some Justin Bobby/Audrina drama (almost as much as I love James Franco and Mila Kunis’ spoof of them during the writers’ strike), I just couldn’t stomach K-Cav as leading lady. [Ed. Note: Did any of the last sentence mean anything to you, dear readers? No, me neither.] But this Costa Rica trip will now live on in infamy, not only as the trip where Justin Bobby apparently wore a Confederate flag hat, but also as the trip that fueled this lawsuit.

According to the complaint, Eliza Sproul was a Field Clearance Coordinator/Production Coordinator on The Hills and accompanied Kristin and crew to Costa Rica. There, her employment “took a turn for the worse” when she was allegedly pressured with drugs, sexually harassed, and forced to work long hours until she “essentially broke down” from exhaustion. The complaint was just filed on October 18, so MTV has not yet filed any responsive papers. But I’m going to put on my employment litigator hat for a moment to analyze Ms. Sproul’s claims.

Sexual Harassment and Hostile Work Environment

First, Sproul alleges sexual harassment and hostile work environment, based on a series of incidents involving two local Costa Ricans purportedly employed by MTV. To win on this claim, she first has to prove that the harassment was “severe and pervasive.” Isolated or trivial incidents aren’t enough. And an employer isn’t automatically responsible for all actions of its employees — there is no strict liability for sexual harassment, unless the alleged harasser is a supervisor or an executive in the company. So absent that, Sproul would have to prove that the higher-ups at MTV knew or reasonably should have known of acts constituting sexual harassment and failed to stop it.

In addition, Sproul would have to show that her employer, MTV, failed to take reasonable steps to prevent harassment from occurring. In practice, an employer should have a well-crafted anti-harassment policy, train its supervisors about harassment, implement procedures for an employee to report harassment when it occurs, and generally avoid whipping its employees into a drug- and alcohol-fueled bacchanalian frenzy. Sproul claims that MTV did not take these steps.

(Sproul also claims that she was harassed based on “race, national origin and ancestry,” but because she does not actually state what her race, national origin and ancestry are, or give any specific facts regarding that claim, my guess is that her lawyer is either a “kitchen sink” kind of litigator, or just forgot to delete that language from his or her form complaint.)

Intentional Infliction of Emotional Distress

The complaint also alleges a cause of action for intentional infliction of emotional distress. While these claims are a law school exam favorite (I still have an elevator phobia based on an infamous UCLAw hypothetical for negligent infliction of emotional distress caused by an elevator crash), they are notoriously difficult to win in the real world. Sproul would have to prove that MTV’s conduct was extreme, outrageous and done with an intent to cause emotional distress or a reckless disregard for the probability of causing emotional distress a pretty high bar. (For example, a California court has found that a statement by a trustee of decedent’s trust to decedent’s former wife that “I’ll get you on your knees eventually” and “I’m going to f— you one way or another” does not satisfy this requirement.)

Also, while Sproul has alleged that she continues to suffer severe emotional distress, I can’t help but note that, based on my quick Google search of her name, she doesn’t look emotionally distressed in her Facebook profile picture at all. (And don’t think I’m the only person who’s going to notice — just another example of the ramifications of putting your photos out there for everyone, including the former employer you’re suing, to see!)

Wage and Hour Claims

And finally, to the mixed bag of claims she asserts, Sproul adds some wage and hour claims: specifically, allegations of overtime and meal and rest break violations. Unless they hold an administrative, executive or professional position, employees in the motion picture industry in California (which includes TV production) are subject to very specific work rules, even without the added complication of guild requirements applicable to certain cast and crew.

Regardless of industry, all California employees must be paid one-and-a-half times their base rate of pay for every hour worked over 8 hours in one day or 40 hours in one week, and double their base rate for every hour after 12 per workday. In the motion picture industry specifically, employees may only be employed up to 16 hours per workday (including meal breaks), employees working more than five hours must be provided with one 30-minute meal period, and employees working more than ten hours must be provided with a second 30-minute meal period. Employees must also be authorized and permitted to take a 10-minute rest break for each four hours worked.

Currently, there is an open question on the issue of whether employers must simply provide the opportunity to take meal and rest periods, or whether employers must actually ensure that the employee takes her meal and rest periods. (In other words, must employers effectively play the role of Jewish mother to their employees, perhaps by also providing them with delicious piroshkies during their breaks, while simultaneously complaining about how fat they’ve become.) Earlier this week, the California Supreme Court heard oral arguments on that question in the much-anticipated Brinker Restaurant case, which you can read more abouthere. The court in the Brinker case has 90 days to rule, but based on its line of questioning, the court appeared skeptical of plaintiffs’ argument that employees must take breaks and may be punished if they don’t. One justice even referred to this level of monitoring as “coercive.” Whatever the court decides will have a significant impact on meal and rest break claims in general, including Sproul’s.

Who’s an “Employee” Anyhow?

Another issue that often arises in the employment litigation context is the issue of whether a purported “employee” is really an employee entitled to the benefits of all these labor laws in the first place. That’s not an issue in Sproul’s case, but it is the pivotal issue in another employment lawsuit brought against MTV by a cast member of Real World/Road Rules Challenge, Tonya Cooley, based on alleged sexual harassment and rape on a trip to Thailand. That case (which may well be the subject of a future blog post) will hinge in part on whether the judge finds there was an employment relationship and whether the reality-show waiver Cooley signed is enough to exempt her from employee status.

And if You’re Wondering How Lowly Employees Can Afford to Bring These Cases in the First Place…

Whatever their foundation, employment claims pose difficulty for employers because of the built-in protection for plaintiffs (and incentive for their lawyers), in the form of attorney fees. If a plaintiff in a discrimination or wage and hour case wins, the employer is typically on the hook for her attorney fees. (The one silver lining is a recent case holding that where the plaintiff is awarded less than $25,000, the judge or arbitrator has discretion to decline to award fees, but there is no guarantee what the judge will decide to do.) On the other hand, even if the defendant employer wins a complete victory and defeats all claims, the plaintiff will only be on the hook for the defendant’s attorney fees if the judge finds the case was “unreasonable, frivolous or vexatious.” This is good news for employees whose employers violate labor laws, and great news for their attorneys, but bad news for even the most careful employers.

So in the employment context, the best practice for employers vis-à-vis litigation is — you guessed it — to take every precaution to prevent it. In the context of harassment, this means creating an employee handbook containing anti-harassment policies, training one’s employees, adopting reporting procedures, and enforcing the policies. In the context of wage and hour laws, that means complying with all the rules, including those regarding minimum wage, overtime, and meal and rest breaks. And again, please, put the kibosh on the sex-drugs-and-rock-and-roll office parties. It all may seem daunting, but engaging in these practices on the front end can save time and money in the long run.

In other words, don’t let the thought of it send you running for The Hills.

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