“As far as stipends in general being illegal, I wish that that were the case. But most stage managers not under an AEA contract are independent contractors, and therefore not included under Wage Protections like Minimum Wage. If they're not employees, they have no protections of any kind, including benefits and a guaranteed minimum wage. And sadly, that's not at all illegal.”
Stipends are illegal. The fact they still exist is that most theatres who are doing this have VERY little to sue for. Also, stage managers who work at this level usually do not have the knowledge of the law, grateful to have this level job or doesn’t want to rock the boat.
The following is sort of layman’s definition of independent contractor – and a stage manager gets caught up in the legal definition . . . and I don’t think, given this definition, could ever been considered a independent contractor.
“One of the most important considerations is the degree of control exercised by the company over the work of the workers. An employer has the right to control an employee. Thus, it is important to determine whether the company had the right to direct and control the workers not only as to the results desired, but also as to the details, manner and means by which the results were accomplished. You should ask yourself, for example, whether the company had the right to control the number and the frequency of breaks, how the workers performed their work, the type of equipment they could use, and their work schedule. If you find that the company had the right to supervise and control such details, and the manner and means by which the results were to be accomplished, such a finding would indicate an employer-employee relationship. On the other hand, the absence of those elements of supervision and control by the company would support a finding that the workers were independent contractors and not employees. In this regard it should be kept in mind that it is the right to control and not the actual exercise of control that is important.”
A stage manager, although does some work that they control their own schedule, the theatre will ultimately state when they have to come into work . . . such as show time.
I have worked for two fairly large theatres that realized unless an employee is a TRUE intern, they should be paid hourly – to bring them in line with federal labor laws.
UNLESS YOU ARE VOLUNTEER AND IF YOU ARE BEING PAID, YOU SHOULD BE PAID AT LEAST MINIMUM WAGE.
Stage Managers do not fall under the category of EXEMPT employees by the Federal Guidelines – so even if you are paid a salary, there would have to be overtime – which is what the AEA salary structure is – Salary + Overtime. One of the layman’s touchstones of if a position is EXEMPT or not is the ability to HIRE or FIRE, and very few stage managers have that. You can go around and around with the legal definitions- but I doubt we are covered under this definition of EXEMPT employees.
“Executives are the first type of exempt employees. Their primary duty is to manage an enterprise, a department or departmental subdivision. To be classified as executive, the person must direct the work of at least two workers; have the authority to hire and fire; and use discretionary powers. Examples include department managers or supervisors who are directly associated with management decisions and the direction of the staff.
Some administrative employees are also exempt from overtime pay regulations. To qualify, the person must perform office work related to management policies or general business operations; handle administration of a school system; or regularly exercise independent judgment and discretion. Some examples might include executive secretaries or administrative assistants
Professional employees also are exempt if their primary work requires advance knowledge acquired by specialized study, or if they must use discretion and independent judgment in their jobs. In other words, their work must be intellectual and varied, not standardized. Teachers, engineers and attorneys are examples of professional employees, as are highly skilled computer software workers.
The final type of exempt employees is outside salespeople. To qualify, they must be customarily engaged in selling or receiving orders for the company's product or service. Also, the employees must regularly work away from the employer's place of business. “
I do not have a law degree, and this texts are pulled from the web – all I know, from going through job studies at different theatres there was no way to justify non-AEA stage management positions as anything other the HOURLY employees to legal counsel that was involved.
Now, how can they get around this?
Make the position volunteer and reimburse for expenditures . . . up to a certain amount. But even a volunteer can pick and choose when to come in.
The reality is, if you are doing a job, you should be paid.
Flat and simple.
(I am not a lawyer . . . if you need further information, talking to a lawyer)
