Real Drama Hits Reality TV Amid the Strikes: NDAs, Union Organizing Talk — And Lawsuits, Too?

As the fall broadcast season approaches without a resolution of the writers and actors strikes, conventional wisdom suggests the networks may dial up their reality TV programming, just as they have during past strikes. But this time around, the unscripted genre is at an inflection point as it grapples with labor issues and NDAs.

Real Housewives alum Bethenny Frankel is encouraging reality performers to strike in solidarity and suggesting that they consider unionizing, while her lawyers are teeing up a fight with NBCUniversal on behalf of a so-far nameless coalition of cast and crew from Bravo, E! and CNBC series over alleged “grotesque” mistreatment and “draconian” nondisclosure agreements.

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The two efforts have a theme in common — compensation and working conditions on reality series — but they don’t immediately seem that interconnected. Until you rewind 15 or so years, that is.

Reality TV exploded during the previous writers strike and, at that point, the Writers Guild of America had been trying for years to organize the people who craft the stories on unscripted series. The guild ultimately dropped that deal point to resolve the strike, but it still pursued administrative claims and lawsuits for alleged wage and hour violations on reality series. It was widely perceived as a strategy to put pressure on the studios and networks to recognize the individuals the WGA was trying to organize. (Two class actions resulted in a $4 million settlement for about 400 workers in 2009.)

So the dual paths of reality television performers talking of unionizing while attorneys Bryan Freedman and Mark Geragos portend litigation through letters to NBCU’s general counsel may feel a bit familiar to those who were working in the industry in the aughts.

An Aug. 3 litigation hold letter sent by Freedman and Geragos alleges their clients have been “mentally, physically and financially victimized” while working on these series. They claim cast members are fueled with alcohol, deprived of food and sleep and denied mental health treatment, and that acts of sexual violence have been covered up. Less than three weeks later, they demanded that NBCU release reality stars and crew from their nondisclosure agreements, which they allege are hiding “systemic rot” in the company’s lucrative reality TV empire.

Reality television NDAs have long been Hollywood lore, an administrative bogeyman that keeps cast and crew silent about the inner workings of these shows. It’s hard to deny that production companies have a valid interest in keeping plot points under wraps until episodes air. As leading Hollywood labor lawyer Ivy Kagan Bierman notes, “A well-drafted nondisclosure agreement that really protects the confidentiality of the series is appropriate.”

The issue is whether, as Freedman and Geragos allege, those NDAs also prevent them from disclosing unlawful workplace conduct. The contracts are notorious for including threats of steep financial penalties, known as liquidated damages, for any breaches. (Bravo on Friday issued a statement clarifying that its NDAs “are not intended to prevent disclosure by cast and crew of unlawful acts in the workplace, and they have not been enforced in that manner.”)

Employment lawyer Ann Fromholz says because so many people are eager to break into Hollywood, whether on a cast or crew, there’s a supply and demand issue that gives studios and networks enormous leverage. “They’re always going to find someone willing to sign whatever they need them to sign because they think it might be the way to get into the entertainment industry,” she says. “Maybe that’ll be their big break. That possibility is attractive to enough [that some] people are willing to sign whatever agreement is put in front of them.”

A union would set rules for working conditions, of course, but Fromholz says it might also temper onerous NDAs. She says, “Almost assuredly, if there’s a union and a collective bargaining agreement in place, those types of agreements would not be acceptable.”

There are countless questions surrounding what unionizing reality TV would look like — in no small part because of the sheer breadth of the genre. A lead on a Real Housewives series has different issues and interests than a contestant on The Amazing Race or a single looking for love on The Bachelor, and a “community of interest” is key to determining if there’s an appropriate bargaining unit. Some reality performers are already covered by SAG-AFTRA’s Network Code Agreement, and the guild has expressed support for adding more to its ranks, but there’s hardly a one-size-fits-all solution.

“SAG-AFTRA isn’t necessarily going to take the position that it covers all performers on all reality TV shows,” says Kagan Bierman. “Many of them are portraying themselves and there’s going to be an issue about whether it’s appropriate for them to be covered.”

But, ultimately, she says even non-union workers and performers shouldn’t be afraid to raise issues.

“It is very important that production companies have safe and respectful work environments, whether or not individuals working on the production are covered by a collective bargaining agreement,” says Kagan Bierman. “We all want the entertainment industry to be a good place, where people thrive.”

Whether this is a tipping point for unionizing reality TV remains to be seen, but as September nears, it’s looking more likely that litigation will be added to the fall schedule.

A version of this story first appeared in the Aug. 23 issue of The Hollywood Reporter magazine. Click here to subscribe.

Aug. 29, 6:15 a.m. Updated to include Bravo’s statement on its reality TV NDAs.

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