AB 5 and Me: A Former Working Actor’s Story

Part 1.

Back before the pandemic…

What did you do on a Friday night?

What if you’re an actor?

What do you do if you’re an actor on a Friday night? You act, right?

What do you do if you’re a movie background actor by day? Or, an extra? Or a SAG-AFTRA member and the cameras aren’t turning on a Friday night?

If it’s summer hiatus? Or you’re between jobs, collecting unemployment? Or you’re an AEA actor and you’ve been auditioning for but not getting roles on TV, or movies or shows? Or, you’re a technician between projects?

What if you work as a princess or magician for childrens’ parties? Or as a professional acting or dancing teacher in a daytime conservatory? Or you record audio books for a living? Or do voice-over for anime? Or work 9–5 performing stunts at a theme park? Or play sick people for medical students? Or play Santa in November and December, but now it’s January?

What do you do? You perform if you can, right?

And, as it happens, Friday nights are when most adults want to be entertained!

What if you’re like me? Someone who wanted to be an actor from an early age, but maybe wasn’t good enough, or good-looking enough, or desperate enough or lucky enough; who tried, but didn’t make it big. There’s quite a few of us, you know.

I’m someone who went to work in a normal job, but nonetheless, pursued the dream part-time for decades. Someone who worked 40+ plus hours a week at a regular job in an office, and another 20+ hours a week on evenings and weekends, still trying to become an actor.

In 1993, when I was 43, I was already 22 years into a full-time business career that would last 34 years before I took an early retirement for health reasons in 2005. I was also 18 years into a much more enjoyable part-time acting career that would eventually include something close to 200 credits as an actor, director, producer and writer. Lots of years of training and experience.

About half of those credits, like those of most actors, were earned working unpaid; for free. They would constitute my training, my student work, my intern and apprenticeship. But gradually I began being paid small amounts, being in demand, being invited to audition, coming up through the ranks, working in bigger projects for bigger companies: civic light operas and the like. I did some movie work. Never making star money, or union money (though I was told many times that I could), but I worked steadily as a character man, as a working actor. I could cover my costs, and deduct my expenses, and make a little extra money. And all the time I had a full-time job by day.

And yet, I felt like a “working actor.”

Maybe I wasn’t a pro, But, definitely no longer an amateur. You might call me a semi-pro. But I was working, and happy, and being creative, doing what I loved.

So, when I joined a theater company then called “Mystery Cafe” in 1993, when I was 43, I brought with me a lot of knowledge, experience and skill. And I stayed there, (even after I retired from business and other work), happily until 2019.

Until AB-5 and Covid-19 shut it down.

Now, a pause to define some terms:

“Mystery Cafe” is a dinner theater company. “AB-5” is a California law.

“Mystery Cafe,” as the title suggests, was a murder-mystery dinner show, combining theater and dining-out in a unique and singular way.

There are many kinds of murder-mystery dinner-shows. Most I have seen are fairly simple and even thread-bare. One I have seen used only one paid actor, and a group of unpaid amateurs who performed elaborate deaths and were carried out, after being fed dinner that was their only compensation.

Mystery Cafe by contrast, which began in Boston in the early 1990’s and was ultimately franchised across the country, was on an entirely different plane: much more ambitious, high-end and elaborate. With a full seven-member cast, live musician, house/stage manager, fully-scripted, beautifully period-costumed, with props, set pieces, and lighting. The show was performed in a restaurant, and combined a better-than-average three-course plated dinner served (by the actors in character as “suspects”) in an audience-interactive extension of the who-dunnit show.

The actors made both a stipend as performers and tips as servers.

Mystery Cafe was an “occasion” destination. We catered mostly to audiences celebrating birthdays, anniversaries, bachelorette parties, graduations and holidays. We also hosted our share of “first dates” or “just something to do on a Friday night.” Even a few marriage proposals.

It was something a bit more special than just dinner and a movie: an “event.” That was our niche. A niche we shared with Disneyland and Medieval Times. But smaller. Which is significant.

“MC” was truly unique…sort of like Medieval Times jousting dinner, but better (I think) because of its intimacy. You had “suspects” and “characters” coming directly to your dinner table and talking to you: letting you play detective by confronting them with your suspicions. It combined, in my opinion, the best of audience-interactive-improv with fully-staged theater. It was a “rara avis,” if you will.

I joined the show, then called “Rio Can Be Murder,” as a cross-dressing Nazi villain in the summer of 1993 when I was living and working in L.A. and the show opened in the ballroom of an multi-storied upscale Holiday Inn in Arcadia. Not quite the work Brad Pitt was getting, but still…

At the time, Actors Equity viewed us as “cabaret,” and had no problem letting union actors work for us. SAG/AFTRA has never had a problem with film or TV actors appearing on the stage.

All through the 1990’s, the show was new and very popular. Critics came and raved. KNX radio critic Tom Hatten attended opening night and commented, “Laughs from start to finish.” The show later moved, in various iterations, storylines and re-brandings, to Newport Beach where Orange County Magazine named it “Best in OC.”

Yet for the producers, the business model was inherently limited. It worked best with intimate groups, generally 95 audience-member/diners or less. Numbers over that tended to be more diners than seven actor/waiters could serve well, and the interaction and intimacy of the show became diluted and stretched. Tips suffered. And so, possible income for both actors and producers was capped.

Now, Mystery Cafe (and all similar companies) never made or paid big money. For me as an actor, it was 5 hours work (set-up, perform, and take-down) once or twice a week (more often during the holidays) for, say, $45 a performance plus tips.

When I started in 1993, playing to 100 audience members or more at a time, this would average about $120 or more a night: not too bad for non-union work. When I finished in 2019, after decades of economic turmoil and diminished public interest, it was more like $60 or less a night. Though there was still a chance to make fairly good money for a few large private parties during the holidays, mostly it was terrible pay. But hey, “give up showbiz?”

What it was not, was a full time job. But that’s not what I wanted. I had that already, or I’d had that before for 34 years. I never did it for the money. I did it because I liked to do it, and I was good at it. Even after I retired and between other jobs — theatrical and otherwise — I still stayed at it.

Until shortly after the end of 2019.

Part 2.

“AB-5” is a California Assembly Bill, which was introduced in late 2018, and was signed into state law in January 2020, with strong support from major labor unions and almost unanimous support of Democrats.

The bill expands on a ruling made in a case that reached the California Supreme Court in 2018, Dynamex Operations West, Inc. vs. Superior Court of Los Angeles. That decision established a three-part test (the so-called “ABC” test) to determine what workers must be defined as “employees” rather than “independent contractors.”

The key test in my case holds that if a contractor provides work essential to the product or service offered by a business they must be considered employees.

In other works, an actor working for a dinner show is an employee. A plumber coming to your restaurant or theater to fix the pipes is a contractor.

It forces employers in the state to pay minimum hourly wages and provide job benefits and protections to part-time employees who, like me, had formerly been designated “Independent Contractors;” typically paid stipends, worked flexible hours, reported their pay on 10–99’s and provided their own health insurance.

AB-5 obliges former IC’s to be paid minimum hourly wage and be covered by workers’ comp insurance and report taxes on W2’s, rather than 10–99’s.

Its supporters say it was created to provide relief, primarily for workers working close to full time, but being treated and paid like part-time workers. People like Uber drivers and Grubhub delivery workers and the like, whose enormous companies are indeed making billions on the backs of low-paid workers.

The LA Times reports (August 6, 2020) that Uber, Lyft, DoorDash and other similar companies are pouring billions of those dollars into supporting Proposition 22 on November’s California ballot, which would provide so-called “carve-out’s,” or exemptions to the law for their businesses.

Meanwhile according to Cal Matters, lawyers, doctors, musicians, fine artists, real estate agents, and hairdressers are among the groups who have successfully lobbied for similar exemptions.

Not so, smaller and mid-sized theater companies, though I understand from my Assembly member’s office there have been talks.

The nature of some kinds of businesses, like theater, is not as clear-cut as those previously granted exemptions.

Newspapers may seem like big businesses but they rely on carriers who, vital as they are, work for 25-cents a paper they deliver and lose $1.25 for every complaint (late paper or wet, or missed) called in At least that’s what it was when I did it for extra money 20 years ago: seven nights a week, 365 days of the year, no time off. It was more than I could take, but my co-workers, mostly Latinos and working multiple jobs, were glad to have it. And were stronger, faster and better at it than I was.

Meanwhile, newspapers are struggling, and the 80% increase in pay AB-5 would require newspapers to pay carriers would likely be the death of local news.

Nonetheless, some people want those jobs and will do them. Some companies could pay higher wages, but some can’t. That’s the situation we’re in.

If Mystery Cafe were to comply with AB-5, the actors’ payroll would have to grow by just under 40%.

Our ticket — the source of our income — has almost always been around $70 for dinner and the show, not including liquor and tips. This has proven to be the “sweet spot” ticket price point since almost the beginning.

Likewise, a 40% increase in a ticket price of $70 would make a ticket of $98, much more than, years of experience have taught us, our guests would be willing to pay, and so not economically feasible.

The fact is: not all companies or entities that use contractors are created equal.

And where would newspaper carriers go if they were let go? To office work? What would Grubhub and Uber drivers do if they couldn’t work around their kids’ school schedules and invalided parents’ doctors’ appointments?

I think I am correct in saying AB-5 has and will cause more job losses than improvements thus far.

The company formerly known as Mystery Cafe struggled to pay the actors minimum wage after AB-5 became law on January 1, 2020. For three months, we went from four shows a month, and then two, and then one. Finally in March, Covid-19 put the company out of its misery, closing us down completely. And after five months, unless a miracle happens, probably for good.

The labor situation in this country definitely needs work. And AB-5 is far from a panacea.

Exemptions to AB 5 for mid-level performing artists might be keyed to:

  • Gross revenues of the companies that use them
  • Or, to annual artists’ total incomes
  • Or, perhaps based on the “part-time” vs. “full-time” nature of the artist’s work.

Mystery Cafe, for example, generally involved one five-hour shift once-a-week versus Uber whose drivers’ hours currently require a six-hour break after twelve consecutive hours of driving within a 24-hour time frame, according to ridester.com.

  • Perhaps companies that can demonstrate they have had to close due to AB 5 can be considered for an individual exemption.

Free-lance work, independent contractors, and part-time help are fundamental aspects of a dynamic labor force and economy. They help the economy shrink and expand as it needs to.

Someday this pandemic will be gone and, hopefully, those of us with work to go back to, will go back to it. There are constraints enough to everything we do. We don’t need to add more artificial one’s.

As for me right now because of Covid-19, I sit at home. I’m 70 now and living with diabetes and other “co-morbidities.” If I stay home and do nothing, I can live on my Social Security, Medicare and pension. But I miss being active doing what I love: making my little money, paying my little taxes and entertaining the folks. Feeling so strange and empty and useless on a Friday night.

I may have slowed down in my “forced dottage,” but I still remember my lines. And I long to get back to my gig.

Amend AB-5 appropriately with real concern and compassion for the diversity of workers; their wants and needs.

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Robert May

Robert May

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Retiree, writer, stage director and actor. Gay man. Born 1950. Worked in business 35 years. Lives in Costa Mesa, CA.