Topics

COVID hold harmless


Marty Mullin
 

Group,
  A friend is about to start a five day job as a script supervisor.  She got a deal memo tht includes the following paragraph:



The last sentence is the key.  Is this legal?  I’m telling her she shouldn’t sign.

MARTY MULLIN
Director of Photography
Los Angeles

._,_._,_


Merritt Mullen
 

Nobody should be signing liability waivers.

David Mullen, ASC
Los Angeles

On Sep 4, 2020, at 5:58 PM, Marty Mullin via cml.news <mmullin4=aol.com@...> wrote:

<Screen Shot 2020-09-04 at 5.03.11 PM.png>


Mark Weingartner, ASC
 

There are at least there components to this issue to consider:

1. In the state of California, under CAL OSHA, as well as in the united staes under Federal OSHA, it is the obligation of the employer to provide a safe workplace.
No worker can release an employer of that obligation

2. If it is a union job, the job is being performed under a collective bargaining agreement, and no individual employee has the legal right or power to abrogate the terms of the contract.  Since the contract does not specifically allow for a limitation of liability due to a pandemic, if the work is being done under an IATSE collective bargaining agreement, signing a waiver is meaningless because she is not empowered to abrogate the terms of the contract.


3.  If it is a non-union job, such a waiver of liability might, in fact, hold up in a court of law.

4.  1, 2, and 3, above are all moot points with regard to an employee being infected, because from a legal standpoint, unless the employee is housed and quarantined 24/7 by the employer for a period of time before the job, during the job, and after the job, there is no way that an employee could PROVE in a court of law that the employee contracted COVID on the job itself.  One could assert it but not prove it.


So where does that net out:

If she is working under a union contract and asked to sign, she should let her local know, but not lose the work by refusing to sign… if she is covered by a collective bargaining agreement she does not have the standing to abrogate the terms of the contract (which does not specifically allow for such a waiver)  so her signature on that wiaver is meaningless.

If it is a non-union job… then that waiver would likely be enforceable and she would not be able to claim against the employer…

… but, and this is the reality of it… unless she could PROVE that her infection were a consequence of being on the job she would likely not prevail in court anyway, so she would be signing away an almost impossible right to exercise.


I AM NOT AN ATTORNEY.  I HAVE NOT EVEN PLAYED ONE ON TV.  THESE ARE MY OPINIONS - WORTH EVERY PENNY I AM CHARGING FOR THEM…  but they are not totally uninformed.

My way of looking at it?  If it is a union job?  sign it and send a copy to the local and take the job if signing it is the only way to take the job and you are otherwise comfortable that the producer will provide as safe a workplace as possible

If it is a non-union job?   maybe sign it, maybe not…  but know that proving liability is very different from having a strong belief that there is liability.


My two cents.

Mark Weingartner, ASC
Not a lawyer not practicing in Lost Angeles


On 4Sep, 2020, at 17:58 07PM, Marty Mullin via cml.news <mmullin4=aol.com@...> wrote:

Group,
  A friend is about to start a five day job as a script supervisor.  She got a deal memo tht includes the following paragraph:

<Screen Shot 2020-09-04 at 5.03.11 PM.png>


The last sentence is the key.  Is this legal?  I’m telling her she shouldn’t sign.

MARTY MULLIN
Director of Photography
Los Angeles


Mitch Gross
 

Like Mark, I’m no lawyer. But I’ve been told by several over the years that this is a substantively worthless clause. As an employer they are responsible for their employee’s working conditions. You may or may not contract Covid, but they have to maintain a safe working environment no matter what. This includes known dangers such as Covid19. There is no waiver for such responsibility in the United States, no matter what some document states. 

Mitch Gross
New York

On Sep 5, 2020, at 1:36 AM, Mark Weingartner, ASC via cml.news <vfxmark=me.com@...> wrote:

There are at least there components to this issue to consider:

1. In the state of California, under CAL OSHA, as well as in the united staes under Federal OSHA, it is the obligation of the employer to provide a safe workplace.
No worker can release an employer of that obligation

2. If it is a union job, the job is being performed under a collective bargaining agreement, and no individual employee has the legal right or power to abrogate the terms of the contract.  Since the contract does not specifically allow for a limitation of liability due to a pandemic, if the work is being done under an IATSE collective bargaining agreement, signing a waiver is meaningless because she is not empowered to abrogate the terms of the contract.


3.  If it is a non-union job, such a waiver of liability might, in fact, hold up in a court of law.

4.  1, 2, and 3, above are all moot points with regard to an employee being infected, because from a legal standpoint, unless the employee is housed and quarantined 24/7 by the employer for a period of time before the job, during the job, and after the job, there is no way that an employee could PROVE in a court of law that the employee contracted COVID on the job itself.  One could assert it but not prove it.


So where does that net out:

If she is working under a union contract and asked to sign, she should let her local know, but not lose the work by refusing to sign… if she is covered by a collective bargaining agreement she does not have the standing to abrogate the terms of the contract (which does not specifically allow for such a waiver)  so her signature on that wiaver is meaningless.

If it is a non-union job… then that waiver would likely be enforceable and she would not be able to claim against the employer…

… but, and this is the reality of it… unless she could PROVE that her infection were a consequence of being on the job she would likely not prevail in court anyway, so she would be signing away an almost impossible right to exercise.


I AM NOT AN ATTORNEY.  I HAVE NOT EVEN PLAYED ONE ON TV.  THESE ARE MY OPINIONS - WORTH EVERY PENNY I AM CHARGING FOR THEM…  but they are not totally uninformed.

My way of looking at it?  If it is a union job?  sign it and send a copy to the local and take the job if signing it is the only way to take the job and you are otherwise comfortable that the producer will provide as safe a workplace as possible

If it is a non-union job?   maybe sign it, maybe not…  but know that proving liability is very different from having a strong belief that there is liability.


My two cents.

Mark Weingartner, ASC
Not a lawyer not practicing in Lost Angeles


On 4Sep, 2020, at 17:58 07PM, Marty Mullin via cml.news <mmullin4=aol.com@...> wrote:

Group,
  A friend is about to start a five day job as a script supervisor.  She got a deal memo tht includes the following paragraph:

<Screen Shot 2020-09-04 at 5.03.11 PM.png>


The last sentence is the key.  Is this legal?  I’m telling her she shouldn’t sign.

MARTY MULLIN
Director of Photography
Los Angeles


John Tipton
 

I”ve seen similar, albeit more veiled wording, on a bunch of deal memos from my clients. I tell them I will not sign anything that explicitly or implicitly releases ANYONE from liability. Full Stop. In every case, they have struck the wording from the document. 
My Agent concurs. 

DO NOT SIGN



John Tipton
Cinematographer
213-268-4210
john@...
http://www.johntipton.com
IMDB: http://www.imdb.me/johntipton

<<< Keep an eye out for Disney+ series  “One Day at Disney” streaming now!

Official Trailer: 
https://video.disney.com/watch/one-day-at-disney-official-trailer-disney-streaming-november-12-590bdf12207ccebd6b4f2a72


John Tipton
 

Mitch, 
Would the same apply if one were working as a loan out as well? 


John Tipton 
Cinematographer
213-268-4210
John@...
www.johntipton.com
Venice beach 

On Sep 4, 2020, at 10:58 PM, Mitch Gross <mitchgrosscml@gmai= l.com> wrote:

=EF=BB=BFLike Mark, I=E2=80=99m n= o lawyer. But I=E2=80=99ve been told by several over the years that this is a= substantively worthless clause. As an employer they are responsible for the= ir employee=E2=80=99s working conditions. You may or may not contract Covid,= but they have to maintain a safe working environment no matter what. This i= ncludes known dangers such as Covid19. There is no waiver for such responsib= ility in the United States, no matter what some document states. 
Mitch Gross
New York

=
On Sep 5, 2020, at 1:36 AM, Mark Weingartner, ASC v= ia cml.news <vfxmark=3Dme.com@...> wrote:

=EF=BB=BFThere are at least there= components to this issue to consider:

<= div class=3D"">1. In the state of California, under CAL OSHA, as well as in t= he united staes under Federal OSHA, it is the obligation of the employer to p= rovide a safe workplace.
No worker can release an emplo= yer of that obligation

2. If it is a union job, the job is being performed under a collective ba= rgaining agreement, and no individual employee has the legal right or power t= o abrogate the terms of the contract.  Since the contract does not spec= ifically allow for a limitation of liability due to a pandemic, if the work i= s being done under an IATSE collective bargaining agreement, signing a waive= r is meaningless because she is not empowered to abrogate the terms of the c= ontract.


3.  If it is a non-union job, such a waiver= of liability might, in fact, hold up in a court of law.

4.  1, 2, and 3, above are all m= oot points with regard to an employee being infected, because from a legal s= tandpoint, unless the employee is housed and quarantined 24/7 by the employe= r for a period of time before the job, during the job, and after the job, th= ere is no way that an employee could PROVE in a court of law that the employ= ee contracted COVID on the job itself.  One could assert it but not pro= ve it.


So where does that net out:
If she is working under a union contract a= nd asked to sign, she should let her local know, but not lose the work by re= fusing to sign=E2=80=A6 if she is covered by a collective bargaining agreeme= nt she does not have the standing to abrogate the terms of the contract (whi= ch does not specifically allow for such a waiver)  so her signature on t= hat wiaver is meaningless.

If it is a non-union job=E2=80=A6 then that waiver would likely be e= nforceable and she would not be able to claim against the employer=E2=80=A6<= /div>

=E2=80=A6 but, and= this is the reality of it=E2=80=A6 unless she could PROVE that her infectio= n were a consequence of being on the job she would likely not prevail in cou= rt anyway, so she would be signing away an almost impossible right to exerci= se.


I AM NOT AN ATTORNEY.  I HAVE NOT EVEN PLAYED ON= E ON TV.  THESE ARE MY OPINIONS - WORTH EVERY PENNY I AM CHARGING FOR T= HEM=E2=80=A6  but they are not totally uninformed.

My way of looking at it?  If it i= s a union job?  sign it and send a copy to the local and take the job i= f signing it is the only way to take the job and you are otherwise comfortab= le that the producer will provide as safe a workplace as possible

If it is a non-union job? &nb= sp; maybe sign it, maybe not=E2=80=A6  but know that proving liability i= s very different from having a strong belief that there is liability.
<= div class=3D"">

My two cents.

Mark Weingartner, ASC
Not a lawyer not practic= ing in Lost Angeles


O= n 4Sep, 2020, at 17:58 07PM, Marty Mullin via cml.news <mmullin4=3Daol.com@...>= wrote:

Group,
  A friend is about= to start a five day job as a script supervisor.  She got a deal memo t= ht includes the following paragraph:

<Screen Shot 2020-09-04 at 5.03.11 PM.png>


The last sentence is the key.  = ;Is this legal?  I=E2=80=99m telling her she shouldn=E2=80=99t sign.
MARTY MULLIN
Director of Photography
Los Angeles

=


Mitch Gross
 

Again, I’m not a lawyer. But I believe that the responsibility of safety on a job rests with the employer, at least in the US. 

Mitch Gross
New York

On Sep 5, 2020, at 10:57 AM, John Tipton <john@...> wrote:


Mitch, 
Would the same apply if one were working as a loan out as well? 


John Tipton 
Cinematographer
213-268-4210
John@...
www.johntipton.com
Venice beach 

On Sep 4, 2020, at 10:58 PM, Mitch Gross <mitchgrosscml@gmai= l.com> wrote:

=EF=BB=BFLike Mark, I=E2=80=99m n= o lawyer. But I=E2=80=99ve been told by several over the years that this is a= substantively worthless clause. As an employer they are responsible for the= ir employee=E2=80=99s working conditions. You may or may not contract Covid,= but they have to maintain a safe working environment no matter what. This i= ncludes known dangers such as Covid19. There is no waiver for such responsib= ility in the United States, no matter what some document states. 
Mitch Gross
New York

=
On Sep 5, 2020, at 1:36 AM, Mark Weingartner, ASC v= ia cml.news <vfxmark=3Dme.com@...> wrote:

=EF=BB=BFThere are at least there= components to this issue to consider:

<= div class=3D"">1. In the state of California, under CAL OSHA, as well as in t= he united staes under Federal OSHA, it is the obligation of the employer to p= rovide a safe workplace.
No worker can release an emplo= yer of that obligation

2. If it is a union job, the job is being performed under a collective ba= rgaining agreement, and no individual employee has the legal right or power t= o abrogate the terms of the contract.  Since the contract does not spec= ifically allow for a limitation of liability due to a pandemic, if the work i= s being done under an IATSE collective bargaining agreement, signing a waive= r is meaningless because she is not empowered to abrogate the terms of the c= ontract.


3.  If it is a non-union job, such a waiver= of liability might, in fact, hold up in a court of law.

4.  1, 2, and 3, above are all m= oot points with regard to an employee being infected, because from a legal s= tandpoint, unless the employee is housed and quarantined 24/7 by the employe= r for a period of time before the job, during the job, and after the job, th= ere is no way that an employee could PROVE in a court of law that the employ= ee contracted COVID on the job itself.  One could assert it but not pro= ve it.


So where does that net out:
If she is working under a union contract a= nd asked to sign, she should let her local know, but not lose the work by re= fusing to sign=E2=80=A6 if she is covered by a collective bargaining agreeme= nt she does not have the standing to abrogate the terms of the contract (whi= ch does not specifically allow for such a waiver)  so her signature on t= hat wiaver is meaningless.

If it is a non-union job=E2=80=A6 then that waiver would likely be e= nforceable and she would not be able to claim against the employer=E2=80=A6<= /div>

=E2=80=A6 but, and= this is the reality of it=E2=80=A6 unless she could PROVE that her infectio= n were a consequence of being on the job she would likely not prevail in cou= rt anyway, so she would be signing away an almost impossible right to exerci= se.


I AM NOT AN ATTORNEY.  I HAVE NOT EVEN PLAYED ON= E ON TV.  THESE ARE MY OPINIONS - WORTH EVERY PENNY I AM CHARGING FOR T= HEM=E2=80=A6  but they are not totally uninformed.

My way of looking at it?  If it i= s a union job?  sign it and send a copy to the local and take the job i= f signing it is the only way to take the job and you are otherwise comfortab= le that the producer will provide as safe a workplace as possible

If it is a non-union job? &nb= sp; maybe sign it, maybe not=E2=80=A6  but know that proving liability i= s very different from having a strong belief that there is liability.
<= div class=3D"">

My two cents.

Mark Weingartner, ASC
Not a lawyer not practic= ing in Lost Angeles


O= n 4Sep, 2020, at 17:58 07PM, Marty Mullin via cml.news <mmullin4=3Daol.com@...>= wrote:

Group,
  A friend is about= to start a five day job as a script supervisor.  She got a deal memo t= ht includes the following paragraph:

<Screen Shot 2020-09-04 at 5.03.11 PM.png>


The last sentence is the key.  = ;Is this legal?  I=E2=80=99m telling her she shouldn=E2=80=99t sign.
MARTY MULLIN
Director of Photography
Los Angeles

=


brad dickson
 

Mark has made a good point with regards to how various jurisdictions would view that clause. For example in Canada under federal labour laws liability can't be signed away and for many provinces the same applies.  As he noted proving you got it all because of the production could be an issue however the production has to ensure they have done their due diligence to be absolved. 
However, the clause does bring up concerns even for the production itself as they could be under the impression they are protected by the clause yet producers unknowingly are actually totally liable. Would that false sense of protection convince them they do not have to use every reasonable form of due diligence? Even before COVID, we have seen incidents occur where productions were under the impression they were exempted yet they then come face to face with labour laws and discovered they are not and even individuals are charged. 
With the clause being part of the agreement does it indicate the production is being given bad legal advice which could extend beyond just that clause? So while others have said don't sign it may also be worthwhile to point out to the production that the clause is not binding, depending upon the justification. I have been on productions where they wanted to flout some safety practices due to cost and once I pointed out the repercussions to the production along with the producers personally they backed off. 
So is the clause put in due to ignorance of the production, bad legal advice or an indication the production wants to operate outside of the working jurisdictions labour laws? Does it portend how the production intends to operate with regards to its crews especially if it fully knows the clause has no relevance? While you may respond you will not sign with that clause in, you may get more insight from their response if you point out that clause is meaningless in your jurisdiction and does absolve them of liability. 

Brad Dickson
Senior Lighting Director
Toronto Canada.

On Sat, Sep 5, 2020 at 10:34 AM John Tipton <john@...> wrote:
I”ve seen similar, albeit more veiled wording, on a bunch of deal memos from my clients. I tell them I will not sign anything that explicitly or implicitly releases ANYONE from liability. Full Stop. In every case, they have struck the wording from the document. 
My Agent concurs. 

DO NOT SIGN



John Tipton
Cinematographer
213-268-4210
john@...
http://www.johntipton.com
IMDB: http://www.imdb.me/johntipton

<<< Keep an eye out for Disney+ series  “One Day at Disney” streaming now!

Official Trailer: 
https://video.disney.com/watch/one-day-at-disney-official-trailer-disney-streaming-november-12-590bdf12207ccebd6b4f2a72



--
Thank you 
Brad Dickson


Lighting Video



brad dickson
 

Obviously, in my previous post, I meant it DOESN'T absolve them of liability. typo.

Brad Dickson
Senior Lighting Designer
Toronto Canada


On Sat, Sep 5, 2020 at 11:43 AM Brad Dickson <braddlighting@...> wrote:
Mark has made a good point with regards to how various jurisdictions would view that clause. For example in Canada under federal labour laws liability can't be signed away and for many provinces the same applies.  As he noted proving you got it all because of the production could be an issue however the production has to ensure they have done their due diligence to be absolved. 
However, the clause does bring up concerns even for the production itself as they could be under the impression they are protected by the clause yet producers unknowingly are actually totally liable. Would that false sense of protection convince them they do not have to use every reasonable form of due diligence? Even before COVID, we have seen incidents occur where productions were under the impression they were exempted yet they then come face to face with labour laws and discovered they are not and even individuals are charged. 
With the clause being part of the agreement does it indicate the production is being given bad legal advice which could extend beyond just that clause? So while others have said don't sign it may also be worthwhile to point out to the production that the clause is not binding, depending upon the justification. I have been on productions where they wanted to flout some safety practices due to cost and once I pointed out the repercussions to the production along with the producers personally they backed off. 
So is the clause put in due to ignorance of the production, bad legal advice or an indication the production wants to operate outside of the working jurisdictions labour laws? Does it portend how the production intends to operate with regards to its crews especially if it fully knows the clause has no relevance? While you may respond you will not sign with that clause in, you may get more insight from their response if you point out that clause is meaningless in your jurisdiction and does absolve them of liability. 

Brad Dickson
Senior Lighting Director
Toronto Canada.

On Sat, Sep 5, 2020 at 10:34 AM John Tipton <john@...> wrote:
I”ve seen similar, albeit more veiled wording, on a bunch of deal memos from my clients. I tell them I will not sign anything that explicitly or implicitly releases ANYONE from liability. Full Stop. In every case, they have struck the wording from the document. 
My Agent concurs. 

DO NOT SIGN



John Tipton
Cinematographer
213-268-4210
john@...
http://www.johntipton.com
IMDB: http://www.imdb.me/johntipton

<<< Keep an eye out for Disney+ series  “One Day at Disney” streaming now!

Official Trailer: 
https://video.disney.com/watch/one-day-at-disney-official-trailer-disney-streaming-november-12-590bdf12207ccebd6b4f2a72



--
Thank you 
Brad Dickson


Lighting Video




--
Thank you 
Brad Dickson


Lighting Video



Mitch Gross
 

Interesting points, but I would say that most productions consider the language of such contracts to be “boilerplate,” meaning that it’s just stuff for the lawyers. These productions will provide proper protections or not regardless of what the document says. Of course it can’t hurt to point out proper protocols and ask if they are following various recommendations such as those from the unions. I generally find most shortcomings to originate from ignorance not malice. 

Mitch Gross
New York

On Sep 5, 2020, at 11:44 AM, brad dickson <braddlighting@...> wrote:


Mark has made a good point with regards to how various jurisdictions would view that clause. For example in Canada under federal labour laws liability can't be signed away and for many provinces the same applies.  As he noted proving you got it all because of the production could be an issue however the production has to ensure they have done their due diligence to be absolved. 
However, the clause does bring up concerns even for the production itself as they could be under the impression they are protected by the clause yet producers unknowingly are actually totally liable. Would that false sense of protection convince them they do not have to use every reasonable form of due diligence? Even before COVID, we have seen incidents occur where productions were under the impression they were exempted yet they then come face to face with labour laws and discovered they are not and even individuals are charged. 
With the clause being part of the agreement does it indicate the production is being given bad legal advice which could extend beyond just that clause? So while others have said don't sign it may also be worthwhile to point out to the production that the clause is not binding, depending upon the justification. I have been on productions where they wanted to flout some safety practices due to cost and once I pointed out the repercussions to the production along with the producers personally they backed off. 
So is the clause put in due to ignorance of the production, bad legal advice or an indication the production wants to operate outside of the working jurisdictions labour laws? Does it portend how the production intends to operate with regards to its crews especially if it fully knows the clause has no relevance? While you may respond you will not sign with that clause in, you may get more insight from their response if you point out that clause is meaningless in your jurisdiction and does absolve them of liability. 

Brad Dickson
Senior Lighting Director
Toronto Canada.

On Sat, Sep 5, 2020 at 10:34 AM John Tipton <john@...> wrote:
I”ve seen similar, albeit more veiled wording, on a bunch of deal memos from my clients. I tell them I will not sign anything that explicitly or implicitly releases ANYONE from liability. Full Stop. In every case, they have struck the wording from the document. 
My Agent concurs. 

DO NOT SIGN



John Tipton
Cinematographer
213-268-4210
john@...
http://www.johntipton.com
IMDB: http://www.imdb.me/johntipton

<<< Keep an eye out for Disney+ series  “One Day at Disney” streaming now!

Official Trailer: 
https://video.disney.com/watch/one-day-at-disney-official-trailer-disney-streaming-november-12-590bdf12207ccebd6b4f2a72



--
Thank you 
Brad Dickson


Lighting Video



brad dickson
 

Hi Mitch 
As you noted many productions operate under ignorance, not malice. That clause in the contract could be the first sign they are overlooking details out of complacency and ignorance. As being a crown corporation employee we had to go through labour laws training and to your point productions often misstepped due to ignorance as producers had not gone through the training. The clause is a Red flag. I am sure ours is not the only industry seeing this type of clause being introduced and court cases will come to public attention that indicates that clause does not absolve liability. 
In our training, many examples were given as to how liability cannot be signed away. 

Brad Dickson
Senior Lighting Designer
Toronto Canada

On Sat, Sep 5, 2020 at 11:50 AM Mitch Gross <mitchgrosscml@...> wrote:
Interesting points, but I would say that most productions consider the language of such contracts to be “boilerplate,” meaning that it’s just stuff for the lawyers. These productions will provide proper protections or not regardless of what the document says. Of course it can’t hurt to point out proper protocols and ask if they are following various recommendations such as those from the unions. I generally find most shortcomings to originate from ignorance not malice. 

Mitch Gross
New York

On Sep 5, 2020, at 11:44 AM, brad dickson <braddlighting@...> wrote:


Mark has made a good point with regards to how various jurisdictions would view that clause. For example in Canada under federal labour laws liability can't be signed away and for many provinces the same applies.  As he noted proving you got it all because of the production could be an issue however the production has to ensure they have done their due diligence to be absolved. 
However, the clause does bring up concerns even for the production itself as they could be under the impression they are protected by the clause yet producers unknowingly are actually totally liable. Would that false sense of protection convince them they do not have to use every reasonable form of due diligence? Even before COVID, we have seen incidents occur where productions were under the impression they were exempted yet they then come face to face with labour laws and discovered they are not and even individuals are charged. 
With the clause being part of the agreement does it indicate the production is being given bad legal advice which could extend beyond just that clause? So while others have said don't sign it may also be worthwhile to point out to the production that the clause is not binding, depending upon the justification. I have been on productions where they wanted to flout some safety practices due to cost and once I pointed out the repercussions to the production along with the producers personally they backed off. 
So is the clause put in due to ignorance of the production, bad legal advice or an indication the production wants to operate outside of the working jurisdictions labour laws? Does it portend how the production intends to operate with regards to its crews especially if it fully knows the clause has no relevance? While you may respond you will not sign with that clause in, you may get more insight from their response if you point out that clause is meaningless in your jurisdiction and does absolve them of liability. 

Brad Dickson
Senior Lighting Director
Toronto Canada.

On Sat, Sep 5, 2020 at 10:34 AM John Tipton <john@...> wrote:
I”ve seen similar, albeit more veiled wording, on a bunch of deal memos from my clients. I tell them I will not sign anything that explicitly or implicitly releases ANYONE from liability. Full Stop. In every case, they have struck the wording from the document. 
My Agent concurs. 

DO NOT SIGN



John Tipton
Cinematographer
213-268-4210
john@...
http://www.johntipton.com
IMDB: http://www.imdb.me/johntipton

<<< Keep an eye out for Disney+ series  “One Day at Disney” streaming now!

Official Trailer: 
https://video.disney.com/watch/one-day-at-disney-official-trailer-disney-streaming-november-12-590bdf12207ccebd6b4f2a72



--
Thank you 
Brad Dickson


Lighting Video




--
Thank you 
Brad Dickson


Lighting Video



Mitch Gross
 

Hi Brad,
I’m in agreement with you on most of this. I would say that it is certainly acceptable in these times for any potential employee to ask what protocols are planned for an upcoming gig. I don’t think it’s rude or “being difficult” to do so. Our industry was shuttered for half a year because of this. Production’s response will likely be a far better indicator of real safety measures than this language in a contract. 

Mitch Gross
New York

On Sep 5, 2020, at 12:39 PM, brad dickson <braddlighting@...> wrote:


Hi Mitch 
As you noted many productions operate under ignorance, not malice. That clause in the contract could be the first sign they are overlooking details out of complacency and ignorance. As being a crown corporation employee we had to go through labour laws training and to your point productions often misstepped due to ignorance as producers had not gone through the training. The clause is a Red flag. I am sure ours is not the only industry seeing this type of clause being introduced and court cases will come to public attention that indicates that clause does not absolve liability. 
In our training, many examples were given as to how liability cannot be signed away. 

Brad Dickson
Senior Lighting Designer
Toronto Canada

On Sat, Sep 5, 2020 at 11:50 AM Mitch Gross <mitchgrosscml@...> wrote:
Interesting points, but I would say that most productions consider the language of such contracts to be “boilerplate,” meaning that it’s just stuff for the lawyers. These productions will provide proper protections or not regardless of what the document says. Of course it can’t hurt to point out proper protocols and ask if they are following various recommendations such as those from the unions. I generally find most shortcomings to originate from ignorance not malice. 

Mitch Gross
New York

On Sep 5, 2020, at 11:44 AM, brad dickson <braddlighting@...> wrote:


Mark has made a good point with regards to how various jurisdictions would view that clause. For example in Canada under federal labour laws liability can't be signed away and for many provinces the same applies.  As he noted proving you got it all because of the production could be an issue however the production has to ensure they have done their due diligence to be absolved. 
However, the clause does bring up concerns even for the production itself as they could be under the impression they are protected by the clause yet producers unknowingly are actually totally liable. Would that false sense of protection convince them they do not have to use every reasonable form of due diligence? Even before COVID, we have seen incidents occur where productions were under the impression they were exempted yet they then come face to face with labour laws and discovered they are not and even individuals are charged. 
With the clause being part of the agreement does it indicate the production is being given bad legal advice which could extend beyond just that clause? So while others have said don't sign it may also be worthwhile to point out to the production that the clause is not binding, depending upon the justification. I have been on productions where they wanted to flout some safety practices due to cost and once I pointed out the repercussions to the production along with the producers personally they backed off. 
So is the clause put in due to ignorance of the production, bad legal advice or an indication the production wants to operate outside of the working jurisdictions labour laws? Does it portend how the production intends to operate with regards to its crews especially if it fully knows the clause has no relevance? While you may respond you will not sign with that clause in, you may get more insight from their response if you point out that clause is meaningless in your jurisdiction and does absolve them of liability. 

Brad Dickson
Senior Lighting Director
Toronto Canada.

On Sat, Sep 5, 2020 at 10:34 AM John Tipton <john@...> wrote:
I”ve seen similar, albeit more veiled wording, on a bunch of deal memos from my clients. I tell them I will not sign anything that explicitly or implicitly releases ANYONE from liability. Full Stop. In every case, they have struck the wording from the document. 
My Agent concurs. 

DO NOT SIGN



John Tipton
Cinematographer
213-268-4210
john@...
http://www.johntipton.com
IMDB: http://www.imdb.me/johntipton

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Thank you 
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Bob Kertesz
 

What I haven't seen mentioned here is that there has been serious discussion in state and federal Republican political circles that a federal law must be passed giving all employers blanket protection from suits if employees get infected at work. The rationale is that such a law must be passed if we expect businesses to reopen and the economy to recover. Major corporations have had their lobbyists insist to politicians that without such blanket exemptions, they will remain closed.

I have my doubts such a law would get passed by a Democrat Congress, but also point out that the vast majority of 'laws' passed in the last 3.5 years have not passed through Congress but rather have been Executive Orders from the President, and that most of them have become law even while awaiting the results of court challenges that have yet to be settled. Should such an Order come down, it's a certainty that it will declare every health/safety law, federal and state, and every union contract mandating workplace safety to be (temporarily, perhaps) void.

I'm in the middle of two jobs at the moment, one a non-union studio shoot, the other a major network union show. Both have some sort of Covid disclaimer in the boilerplate 50 page 'startup pack'. After a brief period of thought, I had no trouble signing those. As Mark Weingartner pointed out, it is pretty much impossible to prove where you were infected if you get sick unless Craft Services has a large bowl labeled "Covid-19 Soup" on the table, so what's the point of refusing to sign?

The non-union shoot is using the 'honor system', where you fill out a piece of paper every day about how great you feel and you haven't been around anyone with Covid. Masks are worn by everyone in the building, and simple blue masks, hand sanitizer, and totally useless gloves are available to those who want them. Gloves are only worthwhile if your work is such that your hands get quite dirty - hand sanitizer has a difficult time killing the virus on very dirty hands. Otherwise, there is no difference between a bare hand and a gloved one - you can touch an infected surface and then your face with either.

The union network show makes everyone take a test weekly before getting to the shoot, but it's pretty useless since the test is always administered a full week before the shoot, and there's no telling what anyone has done, where they've been, or who they've kissed in that week. Mask are mandatory everywhere, there are 'sanitization stations' every ten or fifteen feet, there are at least half a dozen people walking around all day sanitizing chair armrests, handrails, doorknobs, and so on, and they generally make a great effort to keep people as safe as possible. But the tests, given a week in advance, seem to be for show.

To protect myself as much as possible, I wear a KN95 mask all day when I'm at either place, and it has been surprising to see that I'm the only one out of more than 100 people between the two shoots (everyone else wears the flimsy blue ones). I also probably use more hand sanitizer than I should.

Lastly, I would like to point out the sheer impossibility of maintaining a six foot distance on either shoot, especially if you've been in the biz for some time. Yes, great effort is made the first few days, but then muscle memory takes over and people are less than a foot from each other constantly, and there's no way to stay six feet away even if you were determined to do so because people just come up behind you. I also find myself coming up behind others, no matter how much I tell myself I won't do that. Perhaps Covid Hoop Skirts with a six foot diameter are going to become mandatory set wear at some point for all crew.

The only way to stay fully safe is to never leave your house along with everyone else who lives there, and to wear a full body condom if you do go out. Hardly practical if you need to work with a crew.

Stay as safe as you can out there. Be wary but not crazed. Make good choices. This shit isn't going away any time soon as far as I can tell.

-Bob
 
Bob Kertesz
BlueScreen LLC
Hollywood, California

Mostly Retired Engineer, Video Controller, and Live Compositor Extraordinaire.

High quality images for almost five decades - whether you've wanted them or not.©

* * * * * * * * * *



Jan Klier
 

This mirrors recent experiences I had. Against all good intentions, unless you have twice the time and twice the crew it’s impossible to divide into pods and maintain distance. Also some spaces are just too small and narrow to distance. As Bob said after a while muscle memory does set in. I’m fine with the blue surgical masks, because their specs are at least known. I’m a lot more suspicious of random and artistic masks people are wearing that may not have the right degree of filtration. I used the blue masks and started with a fresh one every day. As we learn more that aerosol transmission is possibly a bigger issue, you do have to worry about the HVAC setups, which generally seem marginal or may not have been adapted properly. It will get worse as it gets colder in the year. And people taking off their masks to drink and eat, even when separated are contributing to questionable air quality. Testing is no guarantee that the set isn’t dirty, but it’s nevertheless a valuable method of keep unnecessary risk out. We did a rapid and lab test on our last production, and it was relatively straight forward.

 

For sanitizer I found a regular small spray bottle filled with 3 parts 99% alcohol and 1 part aloe vera to be most useful, as you can keep it with you and spray your handles easily after having touched shared equipment. It leaves minimal residue and is easier to use than other sanitizer. The requirement is 70% alcohol content. Then a second spray bottle with just alcohol and some micro fiber rags so you can wipe things down.

 

I think it is what it is. Just be mindful which jobs you take and how much you trust the production. I will work for people who I generally know be conscientious, but not the random outfit. It’s not worth it. Good to define your comfort zone.

 

As to the waivers, I think the important thing to keep in mind beyond the legality is the psychological component. The person signing it will now be extra vigilant because they know they’re on their own. On the other hand the production having collected waivers may feel more invincible and thus could be less careful than is called for. But I do  understand the concern for the production of having potentially massive liability that is not backed by insurance. So there really isn’t any good answer.

 

Jan Klier

DP NYC

 

From: cml-general@... <cml-general@...> On Behalf Of Bob Kertesz

I'm in the middle of two jobs at the moment, one a non-union studio shoot, the other a major network union show. Both have some sort of Covid disclaimer in the boilerplate 50 page 'startup pack'. After a brief period of thought, I had no trouble signing those. As Mark Weingartner pointed out, it is pretty much impossible to prove where you were infected if you get sick unless Craft Services has a large bowl labeled "Covid-19 Soup" on the table, so what's the point of refusing to sign?

Lastly, I would like to point out the sheer impossibility of maintaining a six foot distance on either shoot, especially if you've been in the biz for some time. Yes, great effort is made the first few days, but then muscle memory takes over and people are less than a foot from each other constantly, and there's no way to stay six feet away even if you were determined to do so because people just come up behind you. I also find myself coming up behind others, no matter how much I tell myself I won't do that. Perhaps Covid Hoop Skirts with a six foot diameter are going to become mandatory set wear at some point for all crew.

The only way to stay fully safe is to never leave your house along with everyone else who lives there, and to wear a full body condom if you do go out. Hardly practical if you need to work with a crew.

Stay as safe as you can out there. Be wary but not crazed. Make good choices. This shit isn't going away any time soon as far as I can tell.

_._,_._,_


Bob Kertesz
 

Note: This post is U.S.-centric.

The current stimulus bill proposed by Senate Republicans and being put
up for a vote perhaps as early as today contains the protection I
mentioned below for employers. The bill will not pass in Congress,
according to Congressional Democrats.

If it fails to pass, I expect to see the same provision tacked onto
every bill that comes up for a vote until at least the November election.

If the provision passes, it makes those boilerplate hold-harmless
provisions crew people are being asked to sign moot.

And in any case, it continues to be close to impossible to prove where
anyone was infected with an airborne virus like Covid, just as it is
with a cold or the flu.

Be careful, be safe, be very aware of your surroundings. It's not a time
to be complacent.

--Bob

Bob Kertesz
BlueScreen LLC
Hollywood, California

Mostly Retired Engineer, Video Controller, and Live Compositor
Extraordinaire.

High quality images for almost five decades - whether you've wanted them
or not.©

* * * * * * * * * *


On 9/5/2020 1:38:32 PM, Bob Kertesz wrote:
What I haven't seen mentioned here is that there has been serious
discussion in state and federal Republican political circles that a
federal law must be passed giving all employers blanket protection
from suits if employees get infected at work. The rationale is that
such a law must be passed if we expect businesses to reopen and the
economy to recover. Major corporations have had their lobbyists insist
to politicians that without such blanket exemptions, they will remain
closed.


George Hupka
 

I wonder if this is the producer's response to being told by insurance companies that they don't cover any losses related to Covid?  Sounds like somebody's lawyer thinking that if the insurance industry can get away with it, why not just add a clause to the contract?

One of the very first Covid-related emails I received was from my insurance company, reminding me that my "business interruption" coverage does not include having to shut down because of a disease/epidemic.  (The amount I'm covered for under "business interruption" would pay my rent for a year.)

They helpfully pointed out that I was still covered if my shop should catch fire, as long as someone was physically in the building 5 days a week.  

--

----------
George Hupka
Director/DP
Saskatoon, Canada
Listmum, Cinematography Mailing List


Bob Kertesz
 

I wonder if this is the producer's response to being told by insurance
companies that they don't cover any losses related to Covid?  Sounds
like somebody's lawyer thinking that if the insurance industry can get
away with it, why not just add a clause to the contract?
Despite how much I hate insurance companies and distrust producers
(generally), I just don't see this as anyone trying to 'get away with
it'. Insurance companies base everything on distributed and manageable
risk, and if they feel the risk is too great, they're not going to issue
a policy. It has always been thus.

What would your response be if you were in the producers' or insurance
companies' position after you have been informed that COVID-19 is an
airborne virus with roughly a two week incubation period, and within
some obvious limits it is impossible to tell when and how anyone caught
the virus? I would be surprised if your response would be "Oh, sure,
we'll cover that loss of business for you."

Somebody's lawyer is doing their job by informing their client that
since it is next to impossible to tell when and how people caught the
virus, the client (producer or insurance company) would be a fool to
assume the responsibility for the aftermath of that infection in any way
whatsoever.

Unless somehow the federal government in your country and/or mine
decides to underwrite those insurance policies, or crews act as one and
turn down work en masse due to lack of coverage, I don't see coverage
for crew happening. At best, some small possibility that with lots of
exclusions, coverage for very expensive on camera talent might happen.
SAG is a very powerful union in some ways.

-Bob

Bob Kertesz
BlueScreen LLC
Hollywood, California

Mostly Retired Engineer, Video Controller, and Live Compositor
Extraordinaire.

High quality images for almost five decades - whether you've wanted them
or not.©

* * * * * * * * * *


Mitch Gross
 

While what you note is true, I would also say that certain due diligence can be required of productions. Stipulations that various protocols be enforced as recommended by some industry body. 

Mitch Gross
New York

On Sep 15, 2020, at 4:53 PM, Bob Kertesz <bob@...> wrote:


I wonder if this is the producer's response to being told by insurance
companies that they don't cover any losses related to Covid?  Sounds
like somebody's lawyer thinking that if the insurance industry can get
away with it, why not just add a clause to the contract?
Despite how much I hate insurance companies and distrust producers
(generally), I just don't see this as anyone trying to 'get away with
it'. Insurance companies base everything on distributed and manageable
risk, and if they feel the risk is too great, they're not going to issue
a policy. It has always been thus.

What would your response be if you were in the producers' or insurance
companies' position after you have been informed that COVID-19 is an
airborne virus with roughly a two week incubation period, and within
some obvious limits it is impossible to tell when and how anyone caught
the virus? I would be surprised if your response would be "Oh, sure,
we'll cover that loss of business for you."

Somebody's lawyer is doing their job by informing their client that
since it is next to impossible to tell when and how people caught the
virus, the client (producer or insurance company) would be a fool to
assume the responsibility for the aftermath of that infection in any way
whatsoever.

Unless somehow the federal government in your country and/or mine
decides to underwrite those insurance policies, or crews act as one and
turn down work en masse due to lack of coverage, I don't see coverage
for crew happening. At best, some small possibility that with lots of
exclusions, coverage for very expensive on camera talent might happen.
SAG is a very powerful union in some ways.

-Bob

Bob Kertesz
BlueScreen LLC
Hollywood, California

Mostly Retired Engineer, Video Controller, and Live Compositor
Extraordinaire.

High quality images for almost five decades - whether you've wanted them
or not.©

* * * * * * * * * *


Adam Forslund
 

As George Hupka points out the crux of the issue is "business interruption" coverage.

This is a bit of a dog chasing its tail situation. There has clearly been an interruption in business...But, the interruption in business is coming through Executive fiat most often as preventing/prohibiting people from accessing business that the Executive claims to be nonessential. Yet, that Executive order is exactly what has caused the physical damage to a business because that business can no longer operate.

There is a case working its way through the California Federal Courts. https://www.insurancejournal.com/news/west/2020/08/31/580849.htm

It will be interesting to see how it all shakes out. Personally, when the Executive crosses into the realm of King/Dictator and uses the executive branch as a junta to carry out policy without going through the Legislature it is a bad sign. This is why many states Supreme Courts have struck down all policies implemented through executive action due to COVID.

As soon as someone stops you from conduction business there has been an interruption. Whether that interruption is covered is a question of facts and policy exclusions.

Keep an eye on it. This will have long lasting implications.

Adam Forslund
Former DP turned Lawyer

Insert boilerplate lawyerly crap here about my BS opinion...blah...blah...blah...you know the drill.