Movie Theater Employees Take Aim at Overtime Pay Exemption

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In 28 states, low-level exhibitor staffers are fighting to end long hours without extra pay.

While a strong December film slate helped lead U.S. box office revenue to a projected $11.4 billion in 2019 (down 4 percent year-over-year), many lower-level employees at top theater chains in multiple states worked without overtime or holiday pay — as they have for much of the past century.

Now, a widely circulated petition by staffers at AMC Theatres is hoping to draw attention to a longtime exemption in 1938's federal Fair Labor Standards Act that allows exhibitors to refrain from providing staff with time-and-a-half pay rates in states without strict overtime laws. "The theater can take advantage of employees and schedule them as much as possible without having to worry, since there's no overtime pay," says Mathew Carpenter, who recently left his job at AMC and was among the 7,496 signatures on the petition that was started by an Atlanta-based theater-restaurant cook at the chain in 2018. (AMC did not respond to requests for comment.)

Currently, lower-level movie theater employees lack mandated overtime in 28 states. Theater chains nabbed their Fair Labor Standards Act amendment in 1967 to exempt "any employee employed by an establishment which is a motion picture theater" from both minimum wage and overtime. The rationale for the exemption at the time was that theaters could not afford the labor costs because of low profit margins, poor box office and rising costs. While the minimum-wage exemption was removed in 1974, the overtime exemption has remained, to the puzzlement of labor experts.

"To me, the motion picture worker [exemption] makes no sense," says Eve Wagner, a mediator/arbitrator with Signature Resolution, which specializes in employment, entertainment and business matters. Adds Michael Hancock, an attorney at Cohen Milstein's civil rights and employment group and a former assistant administrator for the Department of Labor's Wage and Hour Division, "It's hard to see any sort of rational economic argument for it." (The National Association of Theatre Owners declined to comment.)

The Department of Labor even acknowledged the changing role of movie theaters in 2018, when acting administrator Bryan Jarrett responded in a public opinion letter to an unnamed theater with a full-service restaurant (adding high-end food is one of the ways the industry has attempted to distinguish the theatrical experience in recent years). Asked whether the exemption applied to food services employees at the theater, the department affirmed that it did in institutions whose primary function was to screen movies and where "food services operations are functionally integrated with its theater operations." In other words: the exemption still stands at institutions whose primary purpose is to show movies in states without strict overtime protections. (The Department of Labor did not respond to a request for comment.)

Several employees who spoke with THR mentioned that they believe the lack of benefits stems from a stereotype that only teenagers work movie theater jobs. A 29-year-old AMC concessionist in North Carolina, who declined to use her name, notes that her salary without overtime or holiday pay, $8.25 an hour, "is just not going to cut it as an adult." Indeed, the movie theater industry initially argued that it needed an exemption from minimum wage and overtime in the FLSA because "an estimated 90 percent of the workforce consisted of students, housewives and the elderly, many of whom traditionally have a limited attachment to the labor force," the 1981 Report of the Minimum Wage Study Commission notes.

One 17-year-old AMC crewmember at a theater in Colorado noted that holidays are a notoriously difficult time to work at theaters, given the volume of visitors and the high-profile titles: "We have a lot of guests who come in very stressed out." Another former AMC crewmember notes that employees often skip work on holidays, exacerbating the workload for those left on site. (Unlike AMC and Studio Movie Grill, other chains do offer holiday pay rates for low-level employees, including Regal Cinemas, Cinemark Theatres, Arclight Cinemas and Harkins Theatres. Overtime pay generally depends on the state in which the theater is located.)

Without intervention from the Department of Labor, theater employees seeking changes to their benefits for overtime pay might have the most luck pressuring individual state representatives since, as Hancock notes, "legislation at a federal level is pretty much at a standstill." Wagner adds, "The states could certainly enact their own legislation. Or the business could just decide to do it. Just because you don't have to do it doesn't mean you can't."

A version of this story first appeared in the Jan. 16 issue of The Hollywood Reporter magazine. Click here to subscribe.