(Updated January 15, 2021)
As the COVID-19 pandemic evolves, the WGAW is here to assist members with employment and benefit-related issues arising from this global health crisis. If you have a question that is not answered here, contact the Guild’s Legal Department.
Index of Questions
I work in a virtual writers' room; do I still get paid my weekly compensation?
Yes, if you are employed as an Article 13 staff writer or Article 14 writer-producer and work in a “virtual room” from your home, the Company must pay your weekly compensation under the MBA. If you are working in a writers’ room remotely and not getting your weekly compensation, please contact the Guild’s Legal Department as soon as possible.
Because I’m writing remotely, I’m having to buy things I need to do my job, like a monitor and a printer. Can I get reimbursed for those expenses?
Probably. California law provides that employees are entitled to reimbursement of “all necessary expenditures” incurred in performing their job duties. We suggest you ask your direct supervisor or showrunner and get approval before purchasing what you need. If you would like the Guild’s help in making or supporting your request, contact us.
I’ve been asked to write a script, but our writers’ room wrapped. Will I get paid for that script? And should I still get my weekly while I’m working?
If you were asked to write a script and you wrote and delivered the script, you are owed compensation under the MBA. Payment is due within seven days of delivery and if payment is late, you are entitled to interest. You may also be entitled to continued weekly payments if the company closed the room and is instead assigning “freelance” work to you that should be covered by your employment agreement. Contact the Guild’s Legal Department if you need us to investigate and pursue payment.
If our writers’ room closes for a few weeks during the crisis, will I be paid for those weeks?
If the room is truly on a “hiatus”—in other words, if no writer is providing writing services during those weeks—then the Company may be able to suspend payment of the weekly minimums during that hiatus. On the other hand, if anyone is still writing or there is a “virtual room,” then the Company must continue to pay all writers their weekly minimums.
If the writers’ room ends after 10 weeks but I was “guaranteed” 20 weeks, must the Company pay me for the remaining weeks?
If the room is suspended and never reconvenes, the Company may be required to pay out certain guaranteed compensation on a “pay or play” basis. This depends on the specific language of a writer’s individual contract. If you have a question regarding what compensation you might be due and when it is owed, Guild lawyers will look at your contract and let you know. Please forward your questions and contracts to the Legal Department using this secure transfer link.
Can my employer invoke “force majeure” and refuse to pay out the rest of my contract?
The legal doctrine of “force majeure” is commonly included in all types of contracts. Essentially, the provision allows a party to avoid a contractual obligation because of an unforeseen event that makes performance impossible. It is possible that COVID-19, and the extreme measures being taken to address it, may qualify under many contracts as a force majeure event. Ultimately, it comes down to the definition of force majeure in a writer’s individual contract, which sometimes appears in the standard terms and conditions. Of course, in this particular health crisis, a lot of writing can continue and there may not be a basis on which to invoke force majeure at all.
The MBA does not have a definition of force majeure; it does, however, contain certain protections regarding the length of time a suspension can continue. Article 26 of the MBA provides that if any suspension continues for five weeks or more, the writer has the right to terminate his employment.
If a Company is invoking force majeure to avoid payment obligations in your writing services agreement, please contact the Guild’s Legal Department by sending your questions and contracts using this secure transfer link.
My employer suspended our writers’ room and invoked the force majeure clause in our contracts, but has asked us to continue writing scripts during the room closure. Is this permitted?
If any writing continues during the period of suspension, the Company must continue to pay all writers their weekly minimums, in addition to script fees. Contact the Guild’s Legal Department if this is happening to you.
Our show has been put on hiatus and we are not being told when we will come back. How long can the company hold me in this position?
If the Company invokes a force majeure provision in your contract and suspends your employment, the MBA limits the period you can be held without pay to five weeks, after which you can terminate your employment by giving written notice. In addition, the MBA provision regarding options and exclusivity (MBA Article 67) will apply to some writers. Because the facts of each case are unique, please forward your questions to the Legal Department with a copy of your contract using this secure transfer link so the Guild can investigate.
Our writing room has closed and I was paid my weekly compensation, but not my producer fees. My contract says that I receive my overscale episodic quote for “episodes produced.” Am I entitled to my overscale compensation?
Based on the language in many writers’ contracts, an Article 14 writer’s full episodic fee may be due only when an episode is actually produced. When your writing room closed, episodes may have been in varying stages of production. Please contact the Guild’s Legal Department if you would like us to look into whether you are entitled to your full episodic fees. To avoid this issue, when negotiating a deal your reps can include language that translates your episodic fee into an overscale weekly rate.
Returning to Production
My employer has asked me to cover set: What are my rights and can the Guild advocate for me if I don’t feel safe?
Starting June 12, 2020 California and Los Angeles County allowed film and television production to resume. Each individual production needs to adhere to strict safety guidelines agreed upon by labor and management. If you are asked to provide services on set, you should receive a copy of the production’s safety protocol. If you have concerns about going on set, available accommodations, a particular set of protocols or your health or safety while on set, you can contact the Guild or discuss your concerns with your employer directly.
Returning to the Writers’ Room
My employer has asked me to return to the writers’ room. Will it be safe for me to do so?
California and many other state and local guidelines currently require employees who can, to work remotely LA County’s order says: “Everyone who can carry out their work duties from home has been directed to do so.” Studio guidelines the WGAW has reviewed also require that writers’ rooms remain remote. Once these orders are lifted, if you are asked to return to the writing room you are entitled to return to a healthy and safe workplace. Here are the state’s guidelines related to COVID-19 for office workspaces.
If you’re asked to return to an in-person writers’ room before it’s deemed safe, or if your room is outside LA County, please contact Jennifer Barbee for assistance at (323) 782-4521 or email the Legal Department.
I’ve been asked to return to the writers’ room and my employer gave me a waiver to sign. Should I sign it?
No. Your employer is required by law to provide a safe and healthy workplace. You shouldn’t sign anything that seeks to shift that responsibility onto your shoulders, or otherwise attempts to protect the employer from liability. Most such waivers are void as a matter of law.
If you have any concerns or questions about your workplace safety or if you are asked to sign any waiver of your rights, contact Jennifer Barbee for a confidential discussion at (323) 782-4521 or email the Legal Department.
I’m unable to work due to medical quarantine or illness related to COVID-19. What benefits might I be entitled to?
State disability insurance pays short-term disability benefits to eligible individuals certified by a medical provider. If you have a full or partial loss of wages due to a non-work-related illness or injury, access the California Employment Development Department (EDD) website. Staff in the Guild’s Legal Department are available to assist you in this process if needed. Please contact us here.
If you are outside of California, contact the Guild’s Legal Department and we will help you investigate the benefits available in your state.
I’m unable to work because I am caring for an ill or quarantined family member with COVID-19. What benefits might I be entitled to?
You may be entitled to up to six weeks of benefit payments if you have a full or partial loss of wages because you need time off work to care for a seriously ill family member. To see if you qualify, access this California EDD website.
I’m sick or my family member is sick (or quarantined). Am I entitled to sick pay?
The MBA does not provide for sick pay. Some writers may be covered by sick leave plans adopted by their employers. Such sick leave policies may be contained in your employment agreement or in a company’s personnel policy.
Some states and cities have enacted paid sick leave benefits. In California, you are entitled to use Paid Sick Days if you are missing work because of illness. To see if you qualify, access this California DOL website.
If you need to miss work for more than a week, you may also be eligible for State Disability Insurance (SDI) to replace some of the income you lose while you are not working. You can apply for SDI from the Employment Development Department (EDD) online at www.EDD.ca.gov. A healthcare provider or local health official will need to certify your application. SDI benefits are usually 60% or 70% of your normal pay, depending on your income. If you are disabled as a result of coronavirus, the EDD has waived the usual one-week waiting period during which you otherwise would not receive SDI benefits.
Finally, under the federal Families First Coronavirus Response Act (FFCRA) enacted in April 2020, as long as your employer has fewer than 500 employees, you may be entitled to two weeks of additional paid sick leave. If your employer has fewer than 50 employees, it may seek an exemption. You can read more about federal benefits that may be available to you here. Please contact us if you have questions about the size of your employer and how this legislation affects you at Legal.
I continue to work at a jobsite and I have concerns about my health and safety. What protections are available to me?
You are entitled to healthy and safe workplace. Here is the link for the statewide industry guidance related to COVID-19. In addition, on November 19, 2020, California approved new emergency temporary standards for employers and workers in both the public and private sectors. These standards do not cover employees who work from home. The key employee protections in the new standards include free COVID testing to employees potentially exposed in the workplace, exclusion of suspected and positive COVID employees and paid leave to employees removed from the workplace due to exposure to COVID. The new standards require employers to create a written COVID-19 Prevention Program, to take extra steps to address potential outbreaks and to create policies for training on COVID-19.
If you have concerns about the safety of your workplace, or you if you need help navigating this or any other website linked here or have additional questions, please contact the Legal Department. A business representative or attorney will respond to your inquiry.
If you are a CBS news writer with these concerns, please contact Fátima Murrieta in Member Organizing at Fátima Murrieta.
I’ve lost my job because of COVID-19 and I want to know if I’m entitled to unemployment insurance. I’ve heard that writers are independent contractors, not employees, so we can’t qualify.
Individual writers who work under the MBA are employees. This is true even for most writers who are paid through loanout corporations.
In California, qualification for unemployment benefits depends on whether you have earned enough wages during the base period set by the state to establish a claim. You must also be totally or partially unemployed through no fault of your own and physically able to work and available for work. Claims may be made through the California state EDD website.
If I have a loanout company, am I still entitled to receive unemployment benefits?
As a member working under a Guild contract you are considered an employee and are eligible for unemployment benefits, assuming you otherwise qualify. If you have a loanout, you're also considered an employee, so long as you operated as an employee of the loanout and paid appropriate payroll taxes. This is true if your loanout is an LLC, C-Corp, or S-Corp. Unemployment insurance programs will look at all past employment, whether you were employed directly by a studio or through your loanout.
Under existing state unemployment insurance programs like California’s, an individual must meet a certain threshold of earnings from employment during the past 12-18 months. To qualify, you must also be totally or partially unemployed through no fault of your own and physically able and available to work.
In March 2020, the federal government enacted the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which both supplemented and broadened existing state unemployment programs. While the additional $600 weekly benefit originally provided under the CARES Act has now expired, in December 2020, Congress extended the program at a lower ($300 per week) benefit level, which will continue at least until March 14, 2021. You can read more about benefits available under the latest COVID relief legislation here. The new Biden Administration has proposed additional relief programs that will be considered by Congress in early 2021.
Applying for Unemployment Insurance
Am I eligible to collect California unemployment insurance (UI) benefits?
UI is partial income replacement for employees who have lost their jobs or had their hours reduced due to no fault of their own. Basic eligibility requirements include that you are unemployed or working part-time. If your hours or salary has been reduced by 20% or more, you likely are eligible to apply for partial unemployment benefits.
The MBA requires that producers pay unemployment insurance taxes. Working under an MBA contact is considered “covered” employment for purposes of eligibility for unemployment insurance.
Ordinarily, you are required to look for work each week to be eligible for benefits. However, if you are unemployed due to COVID-19, you are not required to look for work to be eligible. The seven-day waiting period is also waived.
To establish a claim for UI, you must have earned at least $1,300 in one quarter of your base period, or at least $900 in earnings in the highest quarter and total base period earnings of 1.25 times your high quarter earnings. This chart from EDD explains how to calculate your base period earnings.
How much can I expect to receive from UI benefits in California?
The current range of UI benefits per week is $40-$450. You can assess your estimated state unemployment benefit amount.
Your unemployment benefit is determined by your earnings from covered employment, and the award is based on your best quarter in the past six quarters. The higher your earnings during this period, the higher your benefits will be, up to a weekly maximum of $450. Traditionally you are eligible to receive UI benefits in California for 26 weeks.
In addition to your weekly California UI benefits, if you were unemployed due to a COVID-19 related reason, you are eligible to receive an additional $300 per week under the most recent federal relief legislation passed in December 2020, for claims through March 14, 2021. Under the Federal Pandemic Emergency Unemployment Compensation Program, you may also be eligible to receive an additional 24 weeks of UI benefit. You do not need to file a separate application to receive these benefits. You can learn more about these federal benefits here.
How do I apply for UI benefits in California?
You should apply for unemployment insurance through the EDD’s UI Online website. The phone system is currently overloaded, but if you need to speak to someone, you can call EDD at (800) 300-5616 from Monday-Friday, 8 a.m.-12 p.m.
This video from EDD explains how to file a UI claim. Before applying, gather all of your documents and information. You will be asked to provide: social security number, state ID (e.g. driver’s license), date last filed for UI (if applicable), total earnings for last week of work starting on a Sunday, last paystubs and W-2s from last employer; 1099s if you believe you were misclassified as an independent contractor; last paystubs and W-2s from employers for last 18 months.
To begin your application, first create a Benefit Programs Online login. You will then proceed to File a New Claim. Be sure to save your draft as you go along. Your draft will remain saved until 8 p.m. on Saturday of the week you started your application. When EDD reviews your claim, if one of your answers is unclear or they have additional questions, they will call you directly. After you’ve successfully filed your application, you’ll be mailed information about UI and your claim.
To request benefit payments, you must “certify” your benefits by reporting your eligibility information to EDD every two weeks. You’ll receive email reminders when it’s time to certify for benefits. The fastest way to do so is through UI Online.
You can choose to receive your benefits via check or debit cards, but debit cards are processed faster.
When applying for unemployment insurance benefits and asked to list my Local Union Number, what should I enter?
The WGAW doesn’t have a local union number, so you can enter 0.
When asked about how I’ve looked for work, can I answer that I used my franchised agent or manager to find work?
Yes, you can state that you contacted your representatives to look for work. However, EDD is not currently requiring that you look for work each week to be eligible for benefits.
The online application to obtain unemployment insurance benefits requires information about why I lost my job. What should I enter?
EDD has added “COVID-19” to its drop-down menu of reasons for why you lost your job. If you are unable to work because of COVID-19, you should select this option for your “separation explanation.” Do not indicate that you are out of work due to a disaster, strike or lockout.
When entering my earnings for the purpose of applying for unemployment insurance benefits, whom should I list as my employer?
The entity that issued your paychecks. So, for example, if Entertainment Partners issued your checks, list Entertainment Partners as your employer, rather than the studio that employed or purchased literary material from you.
When I apply for unemployment insurance, do I report income from residual payments and if so, how?
The unemployment insurance application will ask you to report any income from residual payments. This fact sheet from EDD and this video walk you through how to report your income, including residual payments. This EDD page also provides examples of how to report residual earnings.
Note, however, that section 1277 of the Unemployment Code prevents individuals from establishing valid claims in two successive benefit years without having actually performed work. Learn more about this requirement here.
If I’m applying for unemployment insurance benefits in California, should I report both W-2 and 1099 earnings?
Yes. The Employment Development Department (EDD) will calculate your eligibility and benefit amount based on your total reported earnings.
I performed writing services for a Company in February, but haven’t been paid yet. In what time period should I report my earnings?
You should report your compensation earnings based on the time that you performed the writing services or the company purchased literary material from you, even if you haven’t been paid yet. In contrast, residuals earnings should be reported when they are paid to you.
The UI application requires that I enter my weekly wages, but I was paid a flat fee for my services. How do I report my earnings?
You should estimate the total number of weeks that you worked and then allocate the flat fee that you received, or expect to receive, equally across each of the weeks that you worked.
When asked about previous employment on my UI application, can I mention employers located out of state?
Yes, you should list both your immediate former employer and past employer even if they were out of state.
I applied for unemployment insurance and was issued benefits based on my W-2 earnings. I have additional 1099 income that I haven’t reported. Can I also report the 1099 income to get the expanded unemployment benefits available under the most recent federal COVID-19 relief legislation?
Federal COVID-19 relief legislation passed by Congress in December 2020 addressed this issue faced by many with both W-2 and 1099 income. Under the original CARES Act, if you qualified for state unemployment insurance benefits based on any W-2 earnings, you were not eligible to receive the expanded Pandemic Unemployment Assistance benefits based on separate 1099 income. Under the most recent legislation, you may be eligible for an additional $100 in weekly benefits if you earned at least $5,000 in 1099 income over the last tax year.
I have an S-Corp. Who do I report as my employer for the purpose of obtaining unemployment insurance benefits?
It depends on how payroll duties are handled. If an outside payroll company handles payroll duties for your S-Corp, you should list the payroll company as your employer. Alternatively, if you handle payroll duties directly through your S-Corp, you should list the S-Corp as your employer.
I am an employee of a California S-Corp that was paid income by an out-of-state company. How do I report this income?
If the income was paid to your S-Corp, you should report it as in-state California income.
I have a loanout through which I collect 1099 income. Can I receive a small business loan through the Paycheck Protection Program (PPP) and collect unemployment insurance benefits at the same time?
No. You will have to choose one or the other. This link provides instructions on how to calculate your anticipated loan amount through the PPP.
Similarly, you can assess your estimated state unemployment benefit amount. If you don’t qualify for state unemployment benefits, you may be eligible for federal unemployment benefits under the Pandemic Unemployment Assistance (PUA) program. Under this program, you will receive a flat fee of $167 per week for up to 39 weeks.
I don’t have any prior earnings to report in the past 12-18 months. Am I eligible for unemployment benefits?
You are not eligible for state unemployment insurance benefits, but you may be eligible for up to 57 weeks of benefits under the CARES Act through the Pandemic Unemployment Assistance (PUA) program, which was recently extended for an additional 11 weeks.
I’ve exhausted my 26 weeks of regular state unemployment benefits. Is there any way to receive additional benefits?
Under the Pandemic Emergency Unemployment Compensation (PEUC) program that was created by the CARES Act, you could apply for an additional 13 weeks of unemployment benefits. This benefit was extended for an additional 11 weeks under the legislation passed in December 2020.
I’m having trouble completing the application for unemployment insurance benefits, but have been unable to get a hold of a customer service representative at EDD. Is there anyone else that can help?
EDD has expanded its call center hours from 8 a.m.-8 p.m., seven days a week, starting April 20, 2020. If you need additional assistance, Los Angeles County has 16 WorkSource Centers that may be able to assist you. You can locate a WorkSource Center near you here. You can also make an appointment to attend a virtual workers’ rights clinic through the Legal Aid at Work or Bet Tzedek organizations. Also, see these helpful links from California Employment Lawyers Association, National Employment Lawyers Association, and National Employment Law Project.
SMALL BUSINESS ADMINISTRATION ASSISTANCE
I learned about the Small Business Administration Economic Injury Disaster Loans mentioned on the website, and am wondering if my loanout company is eligible to apply?
Your loanout company may have been eligible for the Small Business Administration Economic Injury Disaster Loan (EIDL) grant if it is an LLC, C-Corp or S-Corp. However, legislation passed in December 2020 that allocated additional funding for EIDL grants will only be available to those located in low-income communities, which have suffered at least a 30% economic loss during an 8-week period between March 2, 2020 and December 17, 2021.
Can I apply for the Paycheck Protection Program (PPP) if I have a loanout company?
Your loanout company may be eligible for a Small Business Administration PPP loan. PPP can be used to cover payroll costs, group health care benefits, interest on a mortgage obligation, rent, under lease agreements in force before February 15, 2020, utilities, for which service began before February 15, 2020 or interest on any debt incurred before February 15, 2020. PPP provides an advance of 2.5 times monthly payroll for small businesses, sole proprietors, independent contractors and self-employed individuals. Congress allocated additional funding to this program in December 2020, and began accepting loan applications on January 11, 2021.
Can I apply for a Small Business Administration Economic Injury Disaster Loan and a Paycheck Protection Payment Loan?
Yes, you can apply for both types of loans, but you will only receive both loans if you are using the funds to cover different expenses.