Plaintiff Paul Ward was employed as a non-exempt and non-union background actor on the show “Winning Time” in September 2022 in Los Angeles. He was paid $16.50 per hour – as of Oct 2023, the average hourly pay for a Background Actor in the U.S. is $12.63 an hour, according to ZipRecruiter. Ward says he worked more than 8 hours a day, and frequently more than 10 hours a day. (Having worked in the film industry during the 1990s, this reporter can attest that a 12-hour day is normal.)
Ward and other similarly situated hourly employees received various forms of non-discretionary incentive pay, which includes lump sum payments for wet work and smoke work, hair and body make-up premiums, wardrobe allowances or night premiums. According to his complaint, one day Ward earned an additional $10 for performing work that involved smoke (referred to on his paystub as “SMOKE WORK”) and on another he also earned an additional $10 for getting his hair cut (referred on his paystub as “HAIR”).
However, HBO failed to include these payments when calculating his rate of pay. According to his complaint, by not including incentive pay, “Defendants paid Plaintiff one and one-half times his base rate, which was not equal to one and one-half times the applicable regular rate… Defendants have failed to factor other forms of Incentive Pay into the regular rates of pay for the payment of overtime and double time wages to persons employed as background talent.”
Meal and Rest Period Premiums
Regarding meal and rest breaks, California labor law stipulates that an employer must pay workers one additional hour of pay at their regular rate of compensation when employees work more than four consecutive hours without a required 10-minute rest break, or when they work more than five consecutive hours without a 30-minute meal break. Ward’s complaint says that HBO and the production company didn’t take into consideration the numerous forms of incentive pay when calculating employees’ regular wages, which resulted in the “underestimation of meal and break period premium pay”. And the complaint also claims that the companies failed to provide employees with itemized wage statements and issue all unpaid wages due at the end of employment.
According to the lawsuit:
Labor Code Section 201.5 provides “An employee engaged in the production or broadcasting of motion pictures whose employment terminates is entitled to receive payment of the wages earned and unpaid at the time of the termination by the next regular payday.”
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Ward’s lawsuit looks to represent any current or former non-exempt, non-union employee of either HBO and/or the production company employed as background talent in California who, since May 22, 2019, was paid overtime wages and/or meal and break period premium pay on the same workday that they were also paid “incentive pay,” which includes at least shift differentials or lump sum payments for wet work and smoke work, hair and body make-up premiums, wardrobe allowances or night premiums. The suit also seeks to cover those workers whose employment by either defendant ended at any time since May 22, 2020.