March 10, 2020

With drama this gripping the cast may seem like paid actors — but they usually aren't paid at all.

As Peter's truly baffling season of The Bachelor finally reaches its agonized conclusion, and Love Is Blind stars have started spilling the tea on what really happened leading up to the altar, you might wonder what these people are really getting out of their experiences if not love. Perhaps a spot on Bachelor in Paradise or the prayer of an influencer gig. The answer, in most cases, is not much.

Reality stars are not considered employees of either the shows on which they appear nor the production companies in charge of filming. Some stars, like those on Bravo, are considered independent contractors and receive a stipend, the amount of which depends on their popularity. Others, including bachelorettes and other competition-style cast members, receive no compensation at all.

Many Bachelor contestants quit their jobs and spend sometimes thousands of dollars to appear on the show, which, in case you're not a fan, does require that they show up, respond to producer direction, and create entertainment for which a network earns money. And that sure sounds like they work for the show, right? Not according to their contracts.

Contestants auditioning for The Bachelor must first sign a contract agreeing to the show's "eligibility" requirements, which explicitly state they will not "become an employee or an independent contractor of the Producer and/or Companies and will not make any claims against Producer and/or Companies, including, without limitation, claims for compensation, derived from any allegation of status as an employee." Contestants must agree to appearing as "participants" in a contest, not "performers," which would be a class of employee that deserves, well, some rights and protections in the eyes of the law.

Put plainly, this means the show can use them to make money, but they don't make money from the show (at least not directly).

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Attorney Kalpana Kotagal, who co-authored the inclusion rider Frances McDormand mentioned in her 2018 Oscars speech, says that Bachelor contracts are probably so one-sided because such agreements have been in place for many shows, for a long time, making them harder to challenge on a case-by-case basis.

"Over time, if a contractual provision is put in place distinguishing a 'participant' from a 'performer,' for example, and that distinction is not challenged in court, or is held up in court, it becomes the norm on which other contracts are based," she says. Meaning the line between reality star and artist has been growing in strength since reality TV began in the ‘90s, even as the performances of carefully crafted public personas (see: Johnny Bananas, NeNe Leakes) has become essential to the success of the genre.

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Now, many reality stars are treated as independent contractors, but Kotagal says even that designation is suspect, at least in California. The Supreme Court's 2018 Dynamex ruling, taking aim at the gig economy, redefines "independent contractor" and "employee." According to the new bill, called AB5, a worker must meet three conditions in order to be classified as an independent contractor: Businesses must prove that the worker (a) is free from the company's control, (b) is doing work that isn't central to the company's business, and (c) has an independent business in that industry. Without meeting all three criteria, the worker is to be considered an employee.

So let's apply that to Bachelor contestants. "Presumably they have to show up to work at a particular time, they have to come to a particular place. They're not sort of making it up on their own, somebody is telling them where they need to be when," Kotagal notes, indicating the stars are under producer control in at least some capacity, failing the first prong of this test. And as reality stars are central to a show's existence, this structure pretty clearly fails the second point as well.

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Unfortunately, employment law hasn't caught up to all the ways people "work" these days, though there have been some inroads with regards to other kinds of employment. Unpaid interns, for example, must now pass a "primary beneficiary" test, according to the Department of Labor. The seven-part test is used to determine whether the intern is receiving the most benefit from the position in terms of academic training, or whether the company is using the unpaid intern in place of an entry-level employee and profiting from free labor.

There is no equivalent test when it comes to reality stars, though it may be worth asking who is benefiting the most from these shows — the unpaid or underpaid participant, or the network.

"If you are a reality star, do you really have the resources to challenge what is in the terms of your contract even if it is potentially illegal and is certainly unfair?" Kotagal asks. "Sometimes, and this happens all the time, sometimes the more powerful party in the bargaining relationship gets away with it." And the participants? In most cases they barely escape with their hearts.

The complete article can be viewed here.