The WGA told its members Friday that boilerplate force majeure provisions in some TV writers’ personal service agreements have been misapplied and that “in several cases, companies are shortchanging writers and we have made demands for compensation.” Force majeure provisions are commonly included in all types of contracts, allowing employers to avoid contractual obligations because of an unforeseen event that makes performance under the contract impossible.
“In some instances, companies have told certain writers on a show that they’re going on hiatus, while other writers on the same show understand they’re being force majeured,” the guild said. “In either case, the studio stops payment. Under some contracts, upon suspension the writer should be paid out the guaranteed compensation due under the agreement. We have been making demands for this unpaid compensation, contributions, and interest where warranted.
“We’ve also heard reports that companies are telling some writers that a (writers’) room is going dark, but asking other writers on a series to continue working on episodic scripts. This attempt at cost-saving is not allowed under the MBA (Minimum Basic Agreement). We’ve sent demand letters to companies for weeklies, related contributions, and interest when companies try to say the room is dark for only some of the writers on a show, but not all.
“Significantly, by asking writers to write scripts on a so-called suspended series, the company is showing that performance is not impossible, so the writers shouldn’t be force majeured. Where that is happening, we’re demanding that the company continue to pay weeklies to all writers in the room.
“Moreover, unlike most performing or directing services, writing is not impossible during the shutdown and can be performed remotely. In fact, many writers have continued to work remotely after the COVID-19 outbreak and implementation of the statewide order. For certain series moving into production, the shelter-in-place order may temporarily impede performance. Even so, performance under individual writing service agreements should continue to the extent that writers can continue to write remotely.”
In general, the guild said, California law “sets a high bar for invoking force majeure and parties have to be able to show that continuing with the contract became impossible or unreasonably expensive. Courts have also generally narrowly interpreted force majeure contract language. Many of the writing contracts we’ve seen contain boilerplate force majeure language that fails to mention public health crises or government regulations as a basis for suspension. These broad definitions may not adequately describe COVID-19-related issues impacting the series.
“Companies can’t hold a writer under an indefinite hiatus to try to circumvent these force majeure limits. Some suspensions may exceed the applicable limits in the MBA: MBA Article 26 allows an initial suspension of five weeks, after which time the writer has the right of termination. As stated in Article 13, for staff writers working at Guild minimum, a company may only suspend the writer for up to four weeks without pay under force majeure provisions. All writers are entitled to know the company’s estimate of the duration of the suspension and that estimate may not exceed the limits in the MBA.”