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Force Majeure

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Force Majeure
What is force majeure?

The force majeure provision, which has been part of the Screen Actors Guild's basic film and television agreements since 1937, protects actors in the event a production is postponed. According to SAG: "If a film or television series is postponed or suspended by reason…of fire, accident, strike, riot, act of God, or of the public enemy…judicial order, or illness of any member of the cast or of the director, one-half salary shall be paid the performer for the first five weeks of…the suspension." The producer must tell the affected cast members, either orally or in writing, whether the work stoppage is temporary or permanent. If permanent, the producer may terminate the production immediately after notifying the cast. If temporary, once the five-week period of half salary is over, a performer can end his or her contract with the production by informing the producer of the intention to leave.

What is the disagreement?

SAG and the American Federation of Television and Radio Artists want to maintain the current force majeure language in their TV-and-film contracts with the Alliance of Motion Picture and Television Producers. The AMPTP wants to delete the force majeure requirements from the contracts, forcing performers to bargain for them on their own.

Can a producer stop an actor from quitting?

Yes. An actor cannot leave if the producer pays his or her full salary for every week of additional suspension that follows the half-pay period. Paying full compensation doesn't allow the producer to change the terms of the performer's personal service contract, which remains in force during the postponement. This includes the number of guaranteed episodes. Force majeure is not a penalty; it is contractual compensation, making it commissionable by the performer's agent.

If an actor leaves after the five-week half-pay period, what happens if the production resumes?

The producer must notify performers of the intent to resume photography. Should the actors be unemployed, they must again take up their roles. If they have found other work after leaving the suspended production, they must cooperate to their fullest in trying to make themselves available to their old bosses. When the actors resume work, they must be paid their previous salaries and offered all the terms of their previous contracts.

What happens if the production is terminated?

If the production is halted due to the illness of a cast member or the director, the producer must pay the affected performers the full balance of what they are owed for their services, plus an extra week of compensation. If the production is ended for any other reason, the extra week's compensation is not required.

Whom does force majeure apply to?

The provisions vary depending upon the type of production and category of performer. It's the section dealing with series regulars that lies at the heart of current negotiations. If work on a movie or TV episode is interrupted, it affects all the principal performers on that project. But if the suspension comes between episodes, it affects only series regulars and recurring characters with a contractually guaranteed number of episodes. SAG has been quoted as saying that force majeure resulted in penalties being owed to players in the casts of 87 shows during last year's 100-day writers strike. By casts, SAG primarily means series regulars.

Why didn't AFTRA get new force majeure language in its recent agreement?

It did. When AFTRA negotiated last year for prime-time network programming under its Exhibit A contract, its force majeure protections were identical to those in SAG's film-and-TV pact, thanks to 27 years of mutual contract negotiations under Phase One. In spring 2008, after the writers strike, both unions had pending legal claims against employers for unpaid compensation under force majeure. AFTRA didn't want to inadvertently affect those claims by negotiating new force majeure terms, so it chose instead to accept whatever language SAG would eventually settle for in its contract negotiations with the AMPTP. In other words, it kicked the can down the road.

Where do the claims stand now?

Historically, producers have rarely paid force majeure claims. When they have, it has been mostly through union-negotiated settlements. Currently, the AMPTP calls the time period of the writers strike a "hiatus" and insists it is not subject to either union's force majeure provisions.

 
 
 
 
 
 

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