AEA Waivers: Not Your Enemy

While everyone’s in a great mood about the SCOTUS ruling, I figured now is a good time to post something controversial, right? It’s always a good idea to bring up the fact that you changed your major from biology to theatre while your parents are still partially buzzed from the craft brew your brother brought on 4th of July. So pull up a bottle of Red Dead Redemption (that really should be a craft beer– one of you get cracking on that), keep your rainbow flag in view, and hear me out.

Everything related to AEA is a hot topic. Publicly discussing its policies and procedures is like navigating a minefield. So I’m going work to be as dispassionate as possible in laying out my point of view.

AEA stringently restricts waivers, and it’s easy to understand why. They’re a union, after all, and one of the main functions of a union is to get the most money possible for its members within a given industry– unions seek to insure that a fair percentage of a company’s operating costs are allocated to its workers. They exist to protect workers from exploitation.

Theatre is an odd industry. It’s actually many disparate industries, which makes any AEA issue a bit more complex. Commercial theatres run by global megacorporations like Disney exist alongside nonprofit companies ranging from 50K a year indie storefronts to multimillion dollar LORTs, which exist alongside community theatres, touring companies, multimedia events, TYA, solo performances, you name it.

Because AEA is working within such a complex environment, it has multiple contracts and agreements of varying sizes differing by geographical area, which makes perfect sense. A Disney Broadway production has very different working conditions, requirements, and expectations than, say, a staged reading at a small nonprofit, and the AEA members in one geographical area may agree that their needs are different than members in a different geographical area.

And then there’s the waiver. A waiver enables a union actor to perform with a company small enough to meet certain requirements for less than the lowest union wage for that area. Waivers are not currently available in all areas of the country, and they vary widely in requirements and restrictions. All agreements and codes are publicly available on the AEA website, if you’re interested in checking out their differences.

Here in the Bay Area, the waiver is called the BAPP– Bay Area Project Policy. BAPPs require companies to be under a certain annual budget, they require the production to be under a certain budget, they require the space to be 99 and under, they limit the number of rehearsals and performances the actor is allowed to do, they limit the number of rehearsal hours the actor is allowed to do, and they require the actor be paid the same as the highest paid person working on the production, not counting the playwright. A theatre company is only allowed to use a BAPP for three years. Once a BAPP is used, a company has three years to use the agreement a limited number of times, and then the agreement times out. Theoretically, exceptions to those rules can be made, but they are exceedingly rare. Once a company times out of the BAPP, it must either work within one of the existing Bay Area contracts or join the ranks of the indie scene. The Bay Area has one of the most active, vibrant indie scenes in the nation in addition to the many excellent companies working under union contracts. Of the 350 companies producing in the Bay Area, 50 are AEA theatres.

I believe that the terms laid out in the BAPP are perfectly reasonable– apart from restricting usage. (MINEFIELD!)

I don’t believe waivers should be so deeply restricted in our industry. AEA actors should be given the power to choose when (and how often) they will work under a waiver. Companies and productions small enough to meet AEA’s requirements for the BAPP should be allowed to finally say yes to the AEA actors who want to work with them. Apart from the very reasonable restrictions on size, budget, stipend, and production schedule, waivers should be unrestricted, and nationwide. There are many benefits, and no downside.

I’m very pro-union– if I weren’t pro-union, and unwilling to violate AEA rules, I wouldn’t have any need to question its policies, but because I respect the union, I think it’s important to honestly discuss the impact its policies have on our community. Whenever I’ve publicly discussed this issue, I’ve received a deluge of responses. The arguments I regularly hear against waivers are discussed below. But– and this will likely be the most controversial thing I say in this post, but it’s the truth– every time I have publicly discussed this issue, I get private responses from AEA actors who support expanding the waiver but believe they cannot say so publicly or in meetings. Every single time. So I think it’s important to make a space for honest, respectful discussions about them.

1. Waivers reduce the value of the work and bring down wages. This is not possible under our current system. Denying waivers cannot protect union wages, or impact them in any way, because the two have no functional overlap. AEA controls who qualifies for waivers, restricting their use to the smallest of theatres. Larger theatres working under AEA contracts are following a wage schedule set by AEA. They may wish to use a waiver or pay actors less, but they cannot. Companies may claim that waivers have devalued the work when their contracts are up for re-negotiation, but AEA will not– nor should they– agree to reduce wages accordingly. Since contracts are already in place that control the wages paid to union actors, there simply is no function for waivers at small companies to impact wages at large ones unless AEA agrees during contract negotiations.

When there have been controversial AEA decisions around new agreements, like with SETA, where some union members felt they were unheard or even screwed over, the membership should hold them accountable. But when, as with SETA, the union is attempting to take nonunion jobs and turn them into union jobs, waivers in use by much smaller companies elsewhere have zero impact on that wage-setting. What the nonunion actors were being paid for those jobs at those companies may have some impact. What similarly-sized companies are already paying union actors has some impact. But what a tiny waiver theatre, by definition far too small to be covered by the contract being negotiated, pays its actors is completely irrelevant– again, unless AEA agrees.

If anything brings down “the value of work” (meaning: compensation), it’s funding. In an industry where labor supply far outstrips demand, actors are making a very respectable percentage of overall operating costs. The nonprofit theatre allocates 53.1% of their operating costs to payroll, according to TCG, which, when evenly divided between administration, artistic, and production, would be 17% each, but in reality breaks out to 18.1% artistic, 20.6% administrative, and 14.4% production. The issue is that the industry has very, very little money, and 18.1% of the nonprofit theatre industry’s operating costs doesn’t amount to much. TCG reports that in 2011, their 1876 reporting member theatres made 2.04 billion dollars combined, from all sources of income, earned and contributed. That’s 1.09 million a year per company. TOTAL. Google spends that much in a quarter on break room Snapple. There just isn’t much to go around in our industry. (The idea that administrative costs should be reallocated to artistic costs is a conversation for another day, but remember that that would require a complete overhaul of our system, top to bottom. Right now, theatre companies must work every single day at tasks like payroll and bookkeeping, keeping insurance up to date, filing forms with the IRS and the state, paying bills, doing maintenance and janitorial work, generating production earned income statements and reconciling performance rights owed, in addition to the never ending, daily development work required to pay for it all. For every fighter pilot, there’s an entire support staff doing the hard work required to keep that pilot in the air. We can’t allocate more money to artistic unless artistic takes on those daily admin tasks in addition to their own artistic tasks, or unless we devise a system that does not require that level of admin support but still somehow generates that level of income. Again: a conversation for another time.)

With so little money to go around, it’s impressive that AEA has achieved such a strong foothold in a market that could theoretically go completely nonunion. I don’t advocate for that– I think the union provides extremely valuable protections. All I’m saying is that waivers, no matter how many you allocate to the tiny companies that qualify, cannot impact AEA wages at larger theatres without AEA consent, and that we already know what impacts wages the most in our industry, whether we care to admit it or not.

2. The existence of small theatres in general depresses wages because they take business away from larger theatres. I don’t believe this. I believe a rising tide lifts all boats, and that someone who enjoys a show at one theatre is more likely to attend another theatre, not less. How do I know this? I’ve been teaching for almost 25 years. I’ve taught thousands of nonmajor university students, all of whom I required to see plays at local theatres. Over those years, countless students have told me that their experience in my class turned them into theatregoers. One sweet older man I’ll never forget told me he believed he hated theatre when he started my class, but it was the only class he could take that fulfilled a requirement before graduation, and now he and his wife were planning vacations around plays they could see across the country. I have dozens of stories like this, and I’m hardly alone. Take your students to the theatre– especially to small theatres doing unexpected, exciting new work– and see what happens.

3. If you’re not making enough money to pay AEA wages by three seasons, you’ve failed and you should shut your doors. You don’t deserve to produce (and its cousin, Denying waivers encourages theatres to grow). This oft-cited opinion has a number of inaccuracies I’ve addressed many times elsewhere, so I’ll try to be brief. Basically, in 2015, growth isn’t a choice you can “encourage.” An enormous percentage of grants require an annual budget floor of at least 100K, some even going as high as a million dollars. The funding that used to get small companies from that 50K annual reachable goal to that first 100K tier has largely evaporated. Pointing to the few theatres who DO manage to grow is meaningless. Someone has to win the lottery, no? For everyone who gets that funding, there are hundreds who do not. But what about earned income? Surely you could increase sales? Increase ticket prices? The entire point of the 501c3 was to decouple theatre production from the need to turn a profit, so those nonprofit theatres would be free to experiment with the art form and produce new work, neither of which are usually big sellers, and make up the difference with donations and grants. For many companies, doing more commercially viable work directly compromises their mission– which was meant to be par for the course for 501c3 theatres. (And of course there’s the very real consideration that even work considered “commercially viable” loses money all the time, so there are no guarantees.) Most importantly, it flies in the face of everything for which we say we stand to equate worthiness with money. The three highest-grossing films of 2014 were Transformers: Age of Extinction ($1.104 billion), The Hobbit: The Battle of the Five Armies ($955 million), and Guardians of the Galaxy ($774 million). Three films, all by themselves, made more than the entire TCG membership’s seasons combined. Does that make those three films more artistically successful, more desirable, more worthy than every TCG theatre in the nation? Did every TCG theatre in the nation fail? Then why are we assuming small theatres “should” be making a certain amount of money, “should” be willing to compromise their missions in order to do so, and are “failures” if they do not? Why do we assume small theatres all should be growing into large theatres? They’re two different animals. Some companies want to grow and some do not. Growth is a for-profit imperative, not a non-profit one.

And let’s be real– increasing sales is just not always possible. You only have so many seats in your theatre, and so many performances available to you, either contractually or practically. Just jacking up ticket prices is not always the answer either. There’s only so much you can charge for small theatre, and it’s not enough to pay the bills AND get you to that 100K threshold, let alone 1 million. This is why nonprofit theatres are always asking for donations and applying for grants. Ticket income alone isn’t enough.

It’s a sure sign that someone has no idea what it’s like to produce small theatre seasons in 2015 when their response is “just get more money.” I hear a lot of “well, I grew my theatre 30 years ago,” or “I produced 3 hit shows in New York.” OK. But I assure you that producing small theatre seasons, year after year, in the 21st century, is a completely different situation. If you’re one of the theatres getting those grants and growing your company: I sincerely applaud you. And I ask you to remember that, for every grant awarded, many are turned away. Your experience does not mean the world operates that way for everyone.

4. Actors deserve to be paid for their work. Well, of course they do. We all do. No one is arguing against that, and, for that matter, no one actually believes anyone is arguing against it, despite the popularity of this argument. Framing the conversation about waivers in this way is just disingenuous. It’s pretending that a waiver company simply believes that artists don’t “deserve” to be paid in order to make those companies sound mean-spirited instead of just poor. If we were seeing a large discrepancy between what admin at waiver companies are paid vs artists, this argument would hold water. The reality is that no one at these waiver companies is being paid much. Waiver companies are, more often than not, groups of people held together by a shared love of an artistic vision. When a union actor chooses to work with a waiver company, it’s because of the shared vision. Everyone working on that production “deserves” to be paid, but all of them have chosen to work for less than what they “deserve” because the project is personally meaningful to them in some way.

There are thousands of small theatres across the nation that are doing high-quality work on a shoestring budget. Actors, both union and nonunion, might wish to participate in that work for a variety of reasons. Theatre is art, and the money one gets from practicing one’s art is sometimes a secondary consideration if other considerations are more personally important. It’s rare to land a role that’s both artistically fulfilling and financially fulfilling– well-paid roles are rare in general due to lack of funding and the oversupply of actors. Very few actors regularly land roles that are both artistically and financially satisfying, and everyone understands that this is the case going in. For every Sutton Foster, there are literally thousands of women who didn’t get cast. People don’t become actors because they believe they will be able to make a living at it. It’s no secret that most AEA actors don’t make their living as actors. AEA’s latest report showed that just 41.3% of the membership was employed in the 13-14 season, and that 41.3% averaged just 16.7 weeks employed during that time, an average that’s barely budged in years. That means even the actors who are landing gigs– just 41% of the membership– are still spending 2/3 of the year unemployed. Of course, that’s on average. We all know the reality– a handful of actors make their living solely as actors and bring up those weeks, while the rest are only working a few weeks a year.

With such dismal employment numbers– numbers that have been this dismal for our entire lives– why go into acting? What draws so many people to this profession? We all know the answer. It’s a calling, an art. People do it for the love of it. Of course, we all would prefer to make money, but it’s a reasonable, logical conclusion that many artists would sometimes be interested in doing a show for other reasons– because it stretches them artistically, because it’s an exciting new show by a playwright they believe in, because the show is written from a perspective or about a topic close to their hearts, because it’s a dream role they may never otherwise get to play, because it’s the actor’s own company, or many other reasons people feel compelled to practice their art apart from money. We all have artistic goals and dreams that are unrelated to money. If money were our primary motivation, we would not have gone into this industry. The reality is that there are some situations for all of us where there are more important concerns than money. Not every time, and not for every person– I don’t mean to imply that money should always be a lesser concern. But sometimes, for some people, it is.

When a small theatre that would otherwise qualify for a waiver but is denied one due to timing or geography, does a show that a union actor wants to be part of for reasons that are related to personal fulfillment, the union currently prevents that actor from making that choice. The denial of the waiver doesn’t create a union job, or have any effect whatsoever on union jobs elsewhere. The role goes to a nonunion actor and the production proceeds as planned. The only person impacted in any way is the AEA actor denied the role. The choice to play that role was denied that actor. I’m approached every season by union actors who want to play specific roles, or who want to be part of specific shows because they’re excited by the project or the playwright, and I must always turn them down because we timed out of the BAPP. A few seasons ago, a union actor called me wanting to play a certain role s/he would have crushed, and I called AEA to go to bat for this actor to see if I could plead for a BAPP even though we had timed out. Of course, I was turned down. The AEA rep I spoke to said, “Actors need to be protected from what they want.” A total of 28,763 AEA actors did not work at all last season (58.7% of their 49,000 members). They need to be “protected” from doing waiver shows? “Protected” from practicing their craft? How is forcing them to sit home idle “protecting” them? It’s not like they’d be choosing a waiver show over an available union one, since there are many more union members than there are union gigs, many more waiver theatres than there are union theatres, and almost no available funding to change that in any meaningful way.

Who does it harm to allow AEA actors who would otherwise sit at home to act in indie shows if they so choose? Who does it help to deny actors that choice, given that there’s no possible way for that choice to impact union wages elsewhere unless AEA makes that happen? The show is still getting produced, and that role will still be played by an actor who will still be paid that stipend. What does it really accomplish to force that AEA actor to sit home idle? Waivers do not have the power to impact other contracts. They do not have the power to convince AEA theatres to go indie. They do not have the power to depress wages. They are not magic. Their terms are completely controlled by AEA. The only power they have to is to put an AEA actor who would otherwise be idle back where she belongs, when she chooses, on her own terms.

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14 thoughts on “AEA Waivers: Not Your Enemy

  1. Kathleen Warnock says:

    As someone who’s been burned by the waiver process (on the East Coast) and is regularly frustrated by the crazy quilt of small theater/showcase/99-seat contracts or the lack thereof, I say burn the whole system down.

    I’m hoping that the Dramatists Guild (which has effectively dissolved the difference between full & associate members, meaning most of the membership are people in indie theater) will finally take the lead in working with AEA to come up with a reasonable independent theater contract that is fair to all the participants…and allows for the real development of new work (in our case in NYC, you can’t extend a Showcase/99-seat contract, even if you are selling out…even if you are giving your actors a stipend…even if everyone is on board with it).

  2. sharon robinson says:

    Dear Getrude, as usual, makes a lot of great points here. To me, the problem is less that AEA doesn’t allow companies to use the BAPP for more than 3 years than that is hasn’t come up with a reasonable next step post-BAPP. There’s also an annoying complacency to all the unions in terms of helping grow the industry that supports them. As an individual, whenever I’ve brought up questions to unions on how I can continue to do the (paying) work I’ve done in the past, the answer is never,” Oh, make sure the company does x and y, and fill out forms A and B,” but rather, “you can’t.”

    • Valerie Weak says:

      The ‘next step’ for the SF Bay Area is the Mbat tier 1 (modified bay area theater) agreement. On this contract, a union actor is paid minimum wage for their work. AEA won’t negotiate for less. As a union member, I wouldn’t want them to. I believe the mbat was created as a stepping stone between the BAPP and the BAT (bay area theater) agreement

      • sharon robinson says:

        Maybe I’m reading it wrong (I’m new to this?) or maybe the website I’m reading isn’t accurate, but it looks to me like MBAT guarantees an hourly minimum wage, but also requires a $220 a week minimum-if that’s accurate, that’s a lot less flexible than just paying minimum wage. Why can’t a theatre company hire a union actor for 10 hours a week at minimum wage? Or bring him/her in at the last week?

        If I may be allowed to have a little bit of my own rant here, I’d like to say that I feel all actors should be paid at least minimum wage for any theatre that wants to call itself a professional theatre.

  3. Donna Hoke says:

    Where I live, AEA actors get AEA contracts and pay wherever they are hired, very often alongside non-Equity actors. Theaters will budget for the number of AEA actors they can afford for a given production. Waivers are used only if AEA actors want to participate in readings. So here in Buffalo, where we don’t have a single AEA designated theater, I feel like if an actor agrees to a waiver once, word would get around and it would be hard for that actor to demand Equity pay next time. Indeed, more than a few actors have given up their Equity status here in order to get more work. Your points are well taken and cogently argued but I do think the nature of the theater community is an important consideration.

    • Any waiver or AEA contract is determined by AEA and the company, not the actor and the company. AEA will tell a company what contracts/agreements are available for that size company, and the company must offer the actor one of those. The company does not have the option to offer a waiver unless it qualifies for one, and a company that has the resources to pay AEA wages will not qualify– that’s what the waiver qualifications AEA created protect against. A company that has ever used any AEA contract is ineligible for a waiver. It’s all determined between AEA and the company using the company’s financial data and space size. So the scenario you describe is impossible within the current system, which is exactly my point. Although that actor works under a waiver at Company X, Company Y still must offer that actor whatever agreement AEA determines it must.

      Also, AFAIK, AEA actors use a staged reading contract rather than a waiver for staged readings. They’re quite reasonable and easy to use. I’ve used them a number of times. We actually use those guidelines whether we use AEA actors or not– they set a great standard.

      • Donna Hoke says:

        Thanks for the clarification; my second post (because for some reason this hadn’t gone through initially) rephrased to ask it as a question, because I only know what I hear from actors. I’m pretty sure there are companies who might have qualified if they never paid one but somehow they scratch up money when needed, I suspect at the expense of not paying the other actors). It’s always a struggle for an actor returning here to determine whether or not it’s worth keeping the card. No surprise, men in their thirties and forties seem to do just fine, while women nearly always lose the role to a non-AEA performer.

      • Donna:

        There’s a lot of misinformation out there. I wouldn’t assume that all small companies have the ability to “scratch up the money when needed,” and I wouldn’t assume that all those who do would otherwise qualify for a waiver. Not every 99 and under space is housing a theatre with a budget small enough to qualify for a waiver. Since theatres determine which contract they work under with AEA, not with actors, getting information from the actors alone might result in a less-than-complete picture of the process and requirements. For sure they’ll know what *their* contract says, but they may not know what AEA requires of the *theatre* to qualify for that contract. Those are two different things.

        And as I say above, companies working under an existing agreement with AEA– which includes the companies you perceive as “scratching up” wages– are not part of this discussion. My point is that literally thousands of small companies are turning AEA actors away every season– actors who, in many cases, sit at home all season, never working– because they don’t have access to a waiver and we can’t afford the lowest tier weekly for that area. The person losing out is the AEA actor, not the company. That actor should be empowered to choose when they work with a waiver company.

        I’m advocating for the waiver to move from being a discussion a theatre has with AEA to a discussion an actor has with AEA. Let theatres provide all of the paperwork proving they qualify as waiver companies. AEA could even require those companies to do that annually– charge $100 fee for it, make some money. Then, when an actor wishes to work at a qualifying waiver theatre, s/he files some paperwork with AEA and it’s done. If a theatre’s budget grows too large to qualify, they lose their status as a waiver company. All I’m saying is let actors choose.

      • Also, comments are moderated on this blog, so they don’t automatically appear when you post them. I was in a meeting yesterday afternoon and didn’t get to my moderation queue for a couple of hours.

      • Donna Hoke says:

        Yes, but it appears saying that it’s waiting to be moderated, but it didn’t appear even as that status, until after I posted the second and there is no means to edit, so if you could delete the second, that would be great. I hear what you’re saying and I guess the sad thing is that actors here are choosing by relinquishing their AEA status.

      • Yeah, we have that here as well. Of all the actors I’ve known who have left AEA, almost all are women. I’ve had white men who sing tell me that I was nuts, and that AEA created more work for them, not less. Because the whole world works for white men the way it works for everyone, right? Ha. I’ll delete the other comment straightaway.

      • gwangung says:

        Glad you brought up the difference between white males (60% of the roles) and females (40%). It’s exacerbated for actors of colors, where I know in my area some actors have refused to go Equity because they would never work again with —there are so few parts written for, e.g., Asian actors and casting directors for the most part are reluctant to cast non-white actors when the script doesn’t call for a non-white actor.

  4. sjarevalo says:

    I agree 100% and am happy to say so publicly. This last year has brought up a number of issues for me as an AEA actor-producer in just trying to produce myself in a solo show where no one else was involved – I the producer needed permission to film work written and performed by me myself and I. However, this is simply a reflection of the fact that we have contracts that are out of step with the times (and these times are seeing a revival of the actor manager!). Many performers now create their own work. And this is not the only contract that assumes traditional set-up; I feel some of the most exciting work today is multi-disciplinary – we need new contracts. But this will only happen when AEA members such as myself advocate for that and are patient with how long it may take. Glad to have a union – and we need to be involved in helping that union keep up. I have not been involved. But I think it’s time I was.

  5. Doug DeVita says:

    Excellent article, Melissa.

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