One pressing enforcement issue that has been arising with some frequency lately relates to your rights when TV series employment is suspended.

With some writers being told that their employment is suspended due to force majeure (because of the impact of COVID-19), it is important to understand that the company’s ability to invoke force majeure depends on the terms of each writer’s individual contract as well as the underlying circumstances affecting each series. This is why we urge writers to contact the WGAW Legal Department directly with specific suspension questions so we can review relevant contract language and know more about the services being performed.

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.

Many of you have asked us whether a company is within its rights to suspend series services because of the pandemic. In several cases, companies are shortchanging writers and we have made demands for compensation. Here are some issues to look out for.

Is there a basis for force majeure?

In general, 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.

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.

Transparency and consistency have also been problems.

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. 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 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. 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.

How long can the suspension last?

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.

If you’ve been suspended from your contract and you have questions, please contact us. Make sure we have your contract so we can look at the force majeure language and give you advice about how to proceed.

See our FAQ for more information about these and other COVID-19-related benefits and employment issues.