2ND UPDATE, 12:48 PM: The two sides have agreed to meet again today at 3 p.m. PT — one last time. Their current agreement had been set to expire on April 6, but they agreed to extend the deadline until tonight at midnight. The WGA has said, “Friday at midnight is a true deadline.”
UPDATED with WGA response, 11:40 AM: The Association of Talent Agents has put the WGA on notice that it stands ready to take legal action against the guild if it carries out its plan to deputize personal managers and lawyers to replace licensed talent agents if the guild orders its members to fire their agents tomorrow.
The move is a troubling sign that the ATA’s negotiations with the guild may not reach an agreement by tonight’s midnight deadline. Last night, with but one day of bargaining remaining, the ATA proposed sharing packaging fee revenues with writers, which is one of the major issues in the negotiations.
Last month, the guild said it would temporarily give managers and lawyers the authority to procure employment for their writer-clients so that they can negotiate their over-scale pay – essentially taking the place of agents if a deal isn’t reached with the ATA for a new franchise agreement.
Attorneys for the ATA, however, sent the guild a letter this morning warning that those plans are unlawful and that the ATA will oppose any attempts to carry them out.
Responding to the ATA’s letter, the guild said that it “stands by its action in lawfully delegating the authority it has as the exclusive representative of writers under federal law. The agencies are attempting to intimidate attorneys and managers to stop them from performing work they routinely do.”
In a letter to the guild, ATA attorney Marvin S. Putnam wrote: “The WGA cannot ‘delegate’ authority it does not have,” The WGA, like all unions, is empowered to bargain collectively on behalf of its members. The WGA cannot, consistent with its duties under federal labor law, negotiate individual deals to the benefit of some members and the detriment of others, or delegate the right to do so.”
“On March 20, 2019, the WGA issued a notice to talent managers and attorneys purporting to ‘delegate’ to those managers and attorneys the authority to procure employment and negotiate the terms of that employment on behalf of WGA members,” he wrote. “We write to advise you that the WGA’s purported delegation violates both California’s Talent Agency Act (TAA) and New York’s General Business law, and to demand its immediate retraction.”
Noting that California Labor Code states that “No person shall engage in or carry on the occupation of a talent agency without first procuring a license” from the state’s Labor Commissioner, the ATA attorney said that the California courts and the Labor Commissioner have “consistently held that the Talent Agency Act ‘requires anyone who solicits or procure s artistic employment or engagements for artists to obtain a talent agency license,’ and has consistently required individuals who receive money in violation of this law to disgorge those earnings.” Similar laws, he said, apply in New York.
“We understand,” Putnam said, “that the WGA has informed managers and attorneys that they – and the producers who engage talent through such unlawful methods – are free to disregard state licensing laws because the WGA has the power to override such laws as a matter of federal labor law. This is patently false. Well-established law demonstrates the opposite. The flaws in the WGA’s legal theory are many. To note just a few:
“Federal labor law is primarily concerned with employment after hiring , not procurement, which is subject to state regulation and which, pursuant to that regulation, can be performed only by licensed talent agents.
“The state regulatory schemes are not in direct or indirect conflict with federal labor law, and in fact, have coexisted for many decades. Such conflict, which does not exist here, is required under the relevant preemption doctrines. This is critical because-absent preemption-state law applies in full to these managers and attorneys, who risk both their businesses and their professional status if they willfully violate the law at the WGA’s behest.
The ATA, he wrote, “considers any and all unlawful procurement entered into at the behest of the WGA to be unfair and unlawful competition that will harm the ATA and its member agencies. Accordingly, we demand the immediate retraction of the WGA ‘s purported ‘delegation.’ ATA will take appropriate action as needed, against any person engaged in unfair competition, to protect the lawful interests of its members.”
Despite the WGA’s year-long threat to disenfranchise all of the ATA’s member-agencies, data provided by the the state Labor Commissioner’s Office shows that there has been no uptick in the number of applications for talent agency licenses to represent the thousands of writers and showrunners who could soon be scrambling to find new agents.