If one looks around the website of The Neil Simon Festival, a yearly theatre event held in Cedar City, Utah, there’s a list of donors to the company. On that list are seven entries at the $100+ level. But the list is perhaps some 30 short, because that’s the approximate number of unlisted individuals who sent $150 to the Festival last year.

While the $150 sent by those people isn’t described by the Festival as a donation, it effectively is one for all but a single person. The $150 figure is derived from the submission fee playwrights are asked to provide as their entry fee to the Festival’s New Play Contest, now in its ninth year. While the Festival notes that every submission receives a written evaluation as part of the company’s response, it is not a fee for service. Playwrights are not offered the opportunity to submit and not receive an evaluation.

Richard Bugg, founder and executive producer of the Festival, said in a call with Arts Integrity that the $150 submission fee was new as of last year, markedly increased from their prior figure. He said it has had the effect of decreasing the submissions, from nearly 100 scripts to somewhere in the 30s. The deadline for the 2019 contest is 11:59 pm on February 1, so there is not yet a final count for this year.

Asked about the fee, which is notably high compared to other play competitions and workshop programs, Bugg explained that the fee is waived for any college or university that chooses and submits a single selection, though he said that none had done so. The Festival’s website states:

The entry fee is used in three areas: a) to help defray the cost of travel and lodging for the playwright, b) payment to our contest readers for their professional expertise, and c) contest administration (photocopying, advertising, etc. but not salary).

Bugg specifically said that the fee helps to underwrite payment to Douglas Hill, who reviews most of the scripts and writes the critiques. Bugg said that Hill is, “magnificent in looking at the structure of scripts and making suggestions.” The payment also helps to pay other reviewers engaged by Hill as needed. Bugg said he also reads all of the finalists’ scripts.

Hill also spoke to the effect of the submission fee, in an e-mail response to questions from Arts Integrity. “We have received as many as 120 submissions in some years, and as few as 20 in other years,” he wrote. “Unfortunately since the contest is less than 10 years old, and with the recent changes to the contest, it’s a little difficult to provide you with a good approximate number.

“We use it to some degree to weed out,” said Bugg. “We get a higher degree of script that way.” However, Bugg allowed that perhaps some worthy scripts might not be submitted due to the expense.

The season at The Neil Simon Festival, an independent not-for-profit organization, is short, only three weeks this coming year, with two shows a day five days a week, and with most actors performing in multiple roles akin to classic repertory format. The winner of the new play contest first receives a six-day staged reading in the year in which it is selected, and is then produced, for three performances, during the subsequent season. In 2019, that play will be I Left My Dignity in My Other Purse by Shelley Chester.

Asked whether the Festival was familiar with Dramatists Guild guidelines regarding play festivals and contests, Bugg said that he was not. Ralph Sevush, Executive Director for Business Affairs of the Guild, when informed of the $150 submission fee, provided the following guidance from the Guild’s best practices guidance:

BEST PRACTICE: The organization does not require a submission fee.  Furthermore, the organization imposes no other obligation on the author or encumbrance on the work (e.g., ticket sales, participation fees, technical rentals, hiring fees, marketing, or other selling obligations), except for do-it-yourself (“DIY”) productions. The Guild has long disapproved of excessive submission fees, which not only undermine the benefit of any “award” or “royalty,” but also impose financial hardship on the author. Any other authorial obligations should be clearly noted up front; this is particularly true for DIY and similar festivals that require authors to self-produce their works.

Regarding payments to the authors when their winning works are performed, Bugg said that there were none. The playwright receives transportation and housing during both visits. Bugg explained, “There’s no royalties. Just being in the season is reward in our eyes.” Bugg did make clear that other playwrights in the Festival, including the Simon estate, are paid royalties.

The Neil Simon Festival, now in its 17th year, is admittedly a small company, operating on a budget of roughly $300,000 per Bugg. While Hill wrote, “We’re probably best defined as a professional non-Equity company,” that assertion is undermined by a casting notice from the Festival. The notice stipulates availability from June 3 to July 29 in Cedar City and 4-5 weeks of subsequent performance in Park City and Ivins, also in Utah. Regarding compensation, the website says only that, “Housing is provided along with a modest stipend.” Bugg noted that while he and several of the other leaders of the company are members of Actors Equity and do perform in the Festival, “We don’t do contracts for ourselves.”

That the Neil Simon Festival operates a new play contest in which playwrights are asked to pay a fee far above the typical competition, that the selected playwright receives no royalty for their work being presented to a paying public, and that actors are essentially volunteering for an entire summer’s engagement stand as three red flags about the company. These simply are not prevailing industry standards. Professionals are paid for their work.

That the company leadership – Bugg, Hill, and artistic director Peter Sham – all teach at the university level (Bugg and Sham at Southern Utah University and Hill at University of Nevada Las Vegas) also raises questions about the professional standards they are imparting to their students, separate from their Neil Simon duties. The encouragement to “work” for little or no pay runs contrary to the practices and expectations that should be instilled in aspiring artists. The suggestion that playwrights of new plays should be rewarded simply by virtue of being produced undermines the perceived value of authors’ creations. Actors shouldn’t be grateful for a place to sleep, petty cash, and stage time. High submission fees emphasize economic disparity among artists, making it possible only for those of means to enter competitions that require a significant outlay (very possibly diminishing the range and caliber of submissions and the program in the process).

When the clock strikes midnight on February 2, the Neil Simon Festival’s  Play Contest entry period will close. But hopefully with some serious thinking resulting from outside scrutiny, the leadership of the company will rethink the economic model under which they function and the messages they communicate through their operating model. Perhaps they can use it to leverage more funding, locally or nationally. Because however great the experience may be for those involved, exorbitant fees for contest entrants and free labor by actors don’t add up a professional experience. It ends up costing the artists to be involved, even as audiences pay in order to see that work. And that’s no laughing matter.

Anyone claiming that there is equity or equality – by gender, by race and ethnicity, by disability – in the American theatre would have to be willfully ignoring the evidence. The Dramatists Guild’s The Count showed that only one in five plays produced in the U.S. is written by a woman. The annual survey of performers on Broadway issued by the Asian American Performers Action Coalition most recently showed that only 22% of Broadway performers in 2014-15 were people of color. The executive summary of a study of leadership in LORT theatres by gender states that at no time have more than 27% of leadership roles been held by women. Define your universe, choose your metric, and it seems quite clear that whites, particularly white men, remain in the majority.

That’s why it proves so maddening to so many when efforts to right the balance meet with opposition. Last week, in Raleigh NC, an effort to advance the cause of female directors in the city’s theatres began to fray just a day after it was announced. The participating theatres had agreed to hire only female directors for open directing slots in their 2017-2018 seasons; this followed on a Women’s Theatre Festival in the area this past summer. As reported by Byron Woods of Indy Week last week, with further updates just before Thanksgiving, a pseudonymous complaint of discrimination about the plan to the signatory companies and the Raleigh Arts Council was sufficient to have one theatre immediately withdraw and for Sarah Powers, executive director of the RAC, to re-emphasize the importance of their non-discrimination granting policy, and to say that the claim would be investigated.

For those who champion equity, as well as diversity, this sort of blowback is frustrating. After all, when statistics prove inequity, why do efforts to rebalance the scales get charged as discriminatory?  The fact is, while there is more than enough evidence to demonstrate a tacit pattern of discrimination favoring white men in the theatre, there is no explicit policy. But when there is a concerted, verifiable attempt to favor any subset of the population while excluding others in hiring, anti-discrimination policies and laws kick in, because they were designed to protect everyone from discrimination, not only defined populations.

It’s troubling that in the Raleigh situation, the complainants – there are now two – are pseudonymous, with Indy Week unable to verify their identities. But the press release about the Raleigh initiative on behalf of female directors is verifiable, as are the companies participating.

The situation is corollary to the one experienced by the musical Hamilton earlier this year, when a casting notice sought “non-white” men and women for its multicultural cast. While it is entirely within the purview of the production to choose actors according to the desired characteristics of the roles, the explicitly exclusive language about the actors being sought put the show at risk of violating discrimination statutes, as well as the policies of Actors Equity. It was quickly revised, even as the production made clear that its creative intent was unchanged.

Looking to the future, we are now less than four years away from the intended start of The Jubilee, an initiative begun by, per its organizing principles as stated on Howlround in October 2015, “a self-organized group of theatremakers from around the country,” asking both theatre companies and individuals to sign on to the following:

 In order to address equity in the American Theatre and in my community, I pledge to support a diverse, inclusive, and intersectional vision in the 2020-2021 season:

Every theatre in the United States of America will produce only work by women, people of color, Native American artists, LBGTQIA artists, deaf artists, and artists with disabilities.

It’s impossible not to look at the Jubilee plans in light of the Hamilton and Raleigh precedents, and indeed the political and social outlook of the still-forming new federal administration.  Similar initiatives could face an uphill legal battle, although The Jubilee may be protected by the fact that playwrights are not defined as employees under prevailing labor law. Public perception is another matter, especially at a time when apparently some white men perceive their primacy as being reinforced as a result of the presidential election.

However, this doesn’t mean that diversity and equity cannot be proactively addressed. In Hollywood, the U.S. Equal Employment Opportunity Commission is more than a year into investigating the gender imbalance among film and television directors, prompted by efforts from the American Civil Liberties Union. If the theatre field doesn’t self-police and initiate real change in the face of overwhelming statistics, it might one day find itself under comparable investigation.

The myriad circumstances, practices and excuses that have maintained the American Theatre as a majority white male domain are unjust and unfair. None of the foregoing is intended to dissuade efforts towards equity, diversity and inclusion, or to suddenly treat white men as a specifically protected and oppressed class. But as various constituencies in the arts work to correct the historic imbalances, they need to remain aware of the legal ramifications of their efforts, and the language in which they define them, even given the significant irony of those seeking to end discrimination potentially running afoul of anti-discrimination laws.

“We really pride ourselves on putting so much out for actors,” said the artistic director, who founded and has run the small non-Equity theatre company for more than a decade. “I’ve had my own experiences, both good and bad, that informed this company. We put everything out there so the actors can make an informed decision.”

It all sounds very positive, very transparent, however the artistic director was responding to a series of specific questions posed about hiring and employment policies, which were spelled out in detail in their company’s online materials, in a questionnaire provided to actors in advance of auditions, and in a contract offered to an actor. The inquiry was not prompted by any outreach from a past member of the company with an axe to grind.

The company’s practices in some cases are seemingly overcontrolling and unenforceable, in other cases contrary to employment law. Regardless of how open the company is, they’re not fostering a safe and creatively productive environment for everyone involved. First and foremost they are protecting their own interests.

The materials obtained contained so much questionable language, and suggests fear on the part of the company’s leadership, that it does raise the question of how actors may be treated when a collective bargaining agreement is not in place. That’s not to say that all companies should immediately strike up agreements with Actors Equity; non-Equity theatre is an essential part of the theatrical environment where young actors, perhaps actors still in school, can get practical experience on stage and where small communities can benefit from live performance. But they need to be making theatre in an environment that is safe and fulfilling.

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The company in question is quite small, claiming roughly a $30,000 annual operating budget. They charge nothing for performances, although they may pass the hat. They perform in a significantly rural part of their state and travel to different towns for their shows. They claim an honor from their state’s governor, and in the brochure used to attract performers, namechecks numerous Shakespeare festivals around the US as having hired their alumni.

While calling themselves professional, half their season is performed by actors who pay a non-refundable $800 (and a $100 security deposit) for the right to perform. The other half of the season, actors are hired for $800 for a total of four weeks. Housing is provided; meals or per diems are not.

Here are some examples of their employment provisions, first from their agreement with the actors paying to participate, with observations notated:

• “Artist understands that they participate in all activities associated with company at their own risk, indemnifying and holding harmless theatre group.” This is not an acceptable practice in any employment situation, or frankly even for volunteers. If the actors are paying to work with the company, or if they’re paid by the company, the company should maintain full liability insurance as well as workers compensation insurance, and should produce proof of such insurance on request.
• The term of the agreement is “Immediately to Final Check Out Day, July 10, 2016.” The term should be from first day of work to last day of work. The company has no jurisdiction over any actor from the moment the contract is signed.
• While housing is provided, there should be “no excess housing electrical/water usage fees ($200+ dollars for the month.” As housing is shared, it is not possible to determine who might be responsible for such overages, especially with some staff living in that housing. No actor should be held liable. This is simply part of housing expense.
• “There are no understudies. If Artist should fail to honor the terms of this agreement, they may be held fiscally liable if, in doing so, additional costs are borne by the organization as a result.” This suggests that if an actor is ill and cannot perform for one or more performances, they bear replacement costs. The same would be true if an actor quit. These costs would be levied on actors who have already paid for the right to be there.
• “Artist gives a release/permission in perpetuity for their likeness and name to be used to promote the Organization, for social media, and agrees to participate in public relations/community outreach events.” The terms for use of likeness and name are unnecessarily broad and vague; it suggests that if an actor becomes well-known, the company can ostentatiously use them in all marketing. Additionally, since there are no stated work hours to begin with, how can actors be compelled to take part in activities beyond their acting work?
• “Artist understands company is a ‘no smoking/no alcohol at any time’ company (even for those over 21).” While an employer can proscribe such behavior during work hours and on company property, they have no right to police people’s personal habits 24/7 for the term of an agreement.
• While there is no reference to workday or workweek in any of the material obtained, the company should make clear that while working with them may be rigorous, and exceed the provisions of most Equity agreements, they should expect a certain amount of guaranteed time for sleep and some partial or full days off in a one-month period.

The company also has a ‘Code of Ethics,’ which is part of their agreement. Among its points, again with annotation:

• “I will: accept the director’s direction in the spirit in which it is given….I will respect that I am part of their vision for the show….I will forego the gratification of ego.” While not illegal, this has nothing to do with ethics. This is actors being told to do exactly what the director tells them without questioning. It seems detrimental to the development of young talent.
• “I will not: Disclose to anyone outside of the Company any Company business including (but not limited to) matters of a fiscal, emotional and/or private nature, as well as what is said or goes on in Company meetings, gatherings and rehearsals.” Questionable in almost any situation, when people are paying a fee to be part of the company, this manner of non-disclosure is inappropriate. What are “matters of an emotional nature” and is the actor supposed to not ever discuss their feelings about their work while working with the company?
• “I will not: Foment an element of ill will by displays of temper, complaining, negativity, foul language, yelling, verbal or physical abuse, gossip or other behavior that may be construed as detrimental to Company morale and to never be anything but positive, polite and friendly to audience members, VIP’s, press, volunteers, and sponsors. I shall inspire the public to respect me and my craft through graciousness in accepting both praise and constructive criticism.” The first portion approaches the controlling nature of social engineering and is probably unenforceable. It raises the question of why the company must proscribe such behaviors as “negativity” and “gossip.” Physical abuse is already illegal.
• “I will not: Publish company business of any kind via electronic or other means, in perpetuity. (i.e: youtube, blogging, social network sites, email, printed materials, etc.).” Again, non-disclosure language that is unnecessarily and unenforceably broad. It’s unlikely an actor would be privy to business information that rises to the level of warranting such confidentiality. This could be construed as an attempt to prohibit all social media activity in connection with an actor’s time with the company.
• “I will not: Discuss or reveal the existence of this agreement with anyone outside the Company.” If you’re afraid people might see your contract terms, then you know there’s something wrong with them. Fix the terms rather than trying to hide your contract from scrutiny.

Finally, from the audition questionnaire:

• “List Daily Medications. Do you have any medical/physical conditions? If yes, describe. Are you currently under psychiatric care/counseling.” Regardless of whether people are paying to participate or being paid, regardless of whether this company is defined as professional or amateur, this kind of question is illegal. Aside from asking for the disclosure of confidential information to which the company has no right, it can be the foundation of discrimination. Only after engaging an actor may the company inquire as to whether an actor has any special requirements of which the company may be called upon to assist, or at least be aware. But disclosure is at the discretion of the actor, except in such cases where a condition would prohibit an actor from fulfilling bona fide occupational requirements, which should be spelled out in advance casting materials.

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The company under discussion holds its auditions at the annual Straw Hat Auditions, held in New York in March. Many non-Equity companies use the Straw Hat Auditions as a means of finding actors for their seasons (as well as staff), but the website of the Straw Hats is fairly enigmatic. E-mails were sent to the two addresses provided on the site, as no phone number appeared. The following questions were posed:

1. How many theatres were at this year’s auditions?
2. Presumably the theatres pay a fee to participate in the auditions. is that so? If yes, is the rate they pay something that is publicly published, or would you be willing to share it?
3. Do you have any criteria for the theatres that participate (beyond being Non-Equity companies)?
4. Are the auditions conducted as a commercial or not-for-profit enterprise?

No response was received. There is a clear need for more transparency about who operates the Straw Hat Auditions,  the manner in which they accept participating companies, and whether they undertake to verify the employment practices of the companies they are essentially serving as agents.

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It is hard not to be sympathetic to a company that brings theatre to an underserved area, to a theatre that says it ceased charging admission as a tribute to an alumnus of their summer camp who died in service in Afghanistan. It is hard not to appreciate the efforts of any producer scraping by on a shoestring, that says their goal is to do good in their community.

But it’s also hard not to feel concern for young actors, eager for any opportunity to get on stage, who may not have the knowledge or even sense to understand when they’re agreeing to substandard terms and conditions and even putting themselves at risk in order to build a resume. All producers, commercial or not for profit, professional or amateur, should first and foremost treat artists with care and professionalism, and insure that their workplace rules and practices place safety above all else. That holds no matter the size of the budget, or even the lack of one.

So this annotated list is offered not simply to call out the behavior of a single company (indeed it is not even a complete accounting of the issues in the material obtained), but to raise awareness of the kind of language that companies may employ, and which artists and indeed staffs should look out for. Many people in the theatre have funny stories about exhaustive hours and risky practices they experienced early in their careers, but with every generation the field should be trying to do better. Just as the medical field has done away with days upon days of on-call work for young residents, theatre cannot sustain itself, even at its most rudimentary and well-meaning level, by saying that if it was OK then, it’s OK now.

Fixing the contractual language above, and the intent behind it, is not particularly expensive; it can surely be put in place for this coming summer season. The artistic director has already made assurances that the medical questions will be withdrawn. The company in question, and its artistic director have not been named throughout because this is not a hit piece, not a “gotcha” piece, but counsel to a company and to anyone who is going to be acting in non-Equity summer stock in the coming months, or employing people as staff or interns.

So as not to be coy, so as not to be accused of creating a straw man and inventing possible scenarios just to raise issues, the company here is incorporated as a 501(c)(3) as PLAYAH in New Hampshire, and does business as Shakespeare in the Valley. This piece should not be an excuse to declare open season on them online and in social media (as was the case with Words Players Theatre almost a year ago), but only to hold them to reasonable professional and legal standards, and to make other companies with comparable provisions aware that non-Equity and summer stock must never be synonyms for non-professional, unfair, or unsafe.

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The Arts Integrity Initiative will monitor this particular situation over the coming 15 months, and invites confidential communications and inquiries from artists, staff and interns not covered by collective bargaining agreements who have concerns about the legality and safety of their employment in the arts.