The COVID-19 pandemic brought film and television productions to a screeching halt. As productions resumed, entertainment and advertising companies have had to implement new regulations in order to keep their employees safe. In this article, Ivy Kagan Bierman, chair of Loeb’s Entertainment Labor practice, explores how the pandemic has shaped the entertainment industry and what her practice looks like in a post-pandemic world.
Ivy Kagan Bierman represents entertainment and related companies in labor, production, distribution, technology and other business matters. Ivy is one of a select few entertainment industry labor lawyers looked to for representation in guild and union matters and regularly counsels entertainment and advertising companies with respect to SAG-AFTRA, DGA, WGA, AFM, IATSE and Teamsters agreements. She also provides Harassment, Discrimination and Bulling Prevention and Unconscious Bias and Respectful Workplace Training tailored to entertainment industry companies.
How has COVID-19 impacted this practice? How are you helping clients respond to COVID-19-related issues?
It has been an extremely busy year. When the pandemic first hit, my team and I worked closely with our entertainment and advertising clients to navigate the impact of the pandemic on their productions. Initially, clients looked to us to determine their legal obligations with respect to guild and union agreements and labor laws as they shut down, postponed or canceled productions. We are now counseling clients as they ramp back up and resume production.
Most of our clients have many different types of personnel who work on various entertainment projects and advertising campaigns. We had to analyze collective bargaining agreements and individual agreements with writers, directors and actors to figure out how to compensate those individuals during the shutdown. We also had to analyze COVID-19 rules and regulations that were instituted at the federal, state, city and county levels, as well as the entertainment industry Return to Work Agreement that the Alliance of Motion Picture and Television Producers negotiated with the guilds and unions. We have to constantly stay abreast of all developments in order to help our clients ramp back up. It is a complicated process with many moving parts. It is great to work with our colleagues in multiple departments on the myriad issues related to COVID-19, such as force majeure and insurance issues.
As the pandemic continued for longer than any of us expected, I recommended to clients that they shift their focus beyond what was legally required and consider what they were able to do to help the individuals who worked with them. It has been a very challenging and rewarding process to help clients navigate the pandemic.
What does an entertainment labor practice look like in a post-pandemic world?
Many of our clients have already resumed production, or are in the process of ramping up production, so we continue to advise them on COVID-19 protocols and compliance matters. The guilds and unions are very focused on making sure that their members are safe on production sites. Even after the majority of employees are vaccinated and production returns to normal levels, I anticipate that certain guild/union and legislative requirements will remain in place for a long time. We will continue to help our clients remain in compliance.
Some of our clients have observed that the pandemic has increased the stress and anxiety levels on productions due to the new ways in which people have to work, such as wearing masks, social distancing and regular COVID testing. The heightened levels of stress and anxiety have caused some friction, which has led to disputes. Clients are seeking assistance with these new challenges.
For example, one client needed me to be available 24/7 on a production to help handle the issues that arose in real time. The client needed help ensuring that the workplace was safe and healthy given that people on the production had very different perspectives on what they should be required, or not required, to do. I drafted an additional COVID-19 statement to post at the production site to remind individuals of their shared obligations to help keep the workplace safe. I also scripted the difficult conservations that the client had to have with the people who did not want to comply so that they would understand that they would be instructed to leave the production site and potentially terminated if they failed to comply. Fortunately, most individuals on productions have been very diligent in following the COVID protocols.
Another issue clients are currently focused on is whether to implement mandatory vaccine requirements—requiring individuals to provide proof that they are vaccinated in order to work on productions or at other workplaces. We have been advising clients that in jurisdictions where mandatory vaccine programs are lawful, clients must still make exceptions to accommodate religious beliefs and disabilities. Mandatory vaccine programs are very controversial and legislation is pending in multiple states to make them unlawful, so we are watching this space closely.
Aside from the impacts of COVID-19, what are the major trends you’re watching?
Entertainment and advertising lawyers are increasingly helping clients with nontraditional ways to produce and exploit content. Clients were already moving toward producing more digital and virtual reality content before the pandemic, but the proliferation of this content has accelerated because of the pandemic, as clients look for ways to develop, produce and exploit content remotely.
Similarly, there is an increase in animation projects, which animators can create at home and in other countries, where there are fewer COVID-related restrictions. There is also a significant increase in podcasts, which can also be developed and created at home. The firm’s lawyers who specialize in podcasts have seen a dramatic uptick in this work.
Another trend I am optimistic about is culture transformation work, something I have been advocating for decades. The pandemic has given companies and organizations an opportunity to pause and reflect on their workplace cultures. This is especially important since the pandemic coincided with a time of social unrest. We have been helping clients assess their cultures and transform them so that they are more diverse, inclusive, equitable and respectful. In addition to the typical workplace harassment, discrimination and bullying prevention and unconscious bias and respectful workplace trainings that we routinely conduct, we are also meeting with high-level executives one-on-one or in small groups to train them on the communication skills they need during this time of social unrest and political divide. We are also working with them on how to cultivate a more connected community during a time when people are working virtually.
What do you think made Loeb so well equipped to advise clients during the pandemic?
I am so proud of our firm and the work that we’ve done and continue to do. From the inception of the pandemic, we created an internal firm task force to help navigate COVID-19 as a community. I am amazed at how connected and productive we have been while working remotely. We also created a COVID-19 task force of experienced lawyers, across many different practice areas, so that we can quickly gather, analyze and share information and be in the best position to advise our clients during this challenging time. My colleagues have years of deep and broad experience in so many different areas of law, which is very beneficial to clients. I believe our firm has done an incredible job working side by side with our clients to help them through these challenging and stressful times.
What makes your practice unique and different?
There are very few entertainment industry lawyers who focus on guild and union work. Many lawyers don’t think it is as appealing as entertainment transactional work. However, I find this work to be very rewarding because guild and union relationships are ongoing and not one-shot transactions. I am very focused on maintaining and cultivating relationships with the guilds and unions and resolving disputes in a non-adversarial, non-litigious way whenever possible. Not all company-side labor lawyers think the same way and often come out swinging, forgetting that they may need to negotiate a collective bargaining agreement or seek a waiver at a later date with those same guilds and unions. I take this same approach with other matters that I handle for clients. Clients have told me that they seek my counsel because of my reputation for being very relationship-focused and able to resolve very complex, high-profile disputes. I’m proud to have developed this reputation in a very competitive industry.