Is It Ever Appropriate to Sue a Company?

Let's Not Be Irrational! - Carabosse (Shura Baryshnikov) w/Catalabutte (Gianna Gino Di Marco) w/artists from Festival Ballet Providence in Sleeping Beauty - (Photo: A. Cemal Ekin)

I wish legal issues were never the case in this beautiful world of the arts, but, at times, they unfortunately present their ugly face. Working in an underfunded trade where anybody from the truest professionals to the thriftiest amateurs can put together a production can mean that a multitude of issues can present themselves in the process of getting a dance work onstage. While certain issues may arise from the beginning phases through to the performances of a production, luckily most of these items don't require contacting a third party to reconcile disagreements. When is it appropriate to reach out to legal counsel if certain issues or disputes reach a breaking point?

I am lucky that there have only been two issues that have ever pushed me into considering legal representation. The first time this happened was when I was working with a small, fledgling company as an employee and the second time was after choreographing for a larger-scale small-town production that involved a school. What I have found in my 8 years dancing with large-scale, well-funded companies and my 4 years traveling the country working as a freelancer with some lesser funded organizations is that problems are much more apparent in schools and companies with less money or less interaction with the professional dance world.

A handful of the issues that I have encountered throughout my time as a professional dancer and choreographer relate to money. But there is a surprising number of other items that I have either experienced or watched other dancers experience. A general list of issues that I have seen range from not getting paid appropriately (getting paid less, late, never getting paid at all, not receiving compensation for travel, etc.) to withholding dancer rights (workers compensation for employees). I have had my choreography altered against my knowledge, seen dancers per diem withheld, and watched abusive behavior inside the studio. Whether these items arise because of a lack of professional understanding, negligence, or devious behaviors, none of these actions are ever appropriate. Unfortunately, instead of admitting to these errors and working to resolve the situation, those few employers that committed these acts tend to fight a difficult battle instead of admitting to their erroneous ways.

The best way that I can offer up advice is to discuss the two times that I have considered reaching out to legal counsel. The first time was when a company decided to break my employment because I had been injured. When I got hurt, this organization decided to hide that I had a right to use workers compensation to regain my health. When I had to pull out of a program, the director went into a week-long rage against me and, eventually, fired me for what they claimed was a different reason than that they didn't want to finance the healing of one of their employees.

The second time that I encountered a situation that might have led me to speak with an attorney was when a small-town organization violated a choreography contract by adding their own choreography for a public performance into a work that I had already created. After finding my work on Facebook and not recognizing the movement, I reached out to the organization to resolve the situation. Instead of hearing the sincerest of apologies, I received an angry, defensive response naming articles in my contract where they tried to convince me that they could do whatever they wanted with my choreography.

While these were both very different experiences, there were certain similarities in them that differentiated these behaviors from other situations that may have been testy, but wouldn't be worth reaching out to a legal representative. In both situations, my rights were compromised. The first situation was a legal right as an employee, while the second was a violation of a contract. I have found that it is best to reach out as soon as possible to the source in order to work to resolve a situation. In most occurrences, people are reasonable and willing to work with you to maintain a relationship and make sure that all parties are content. But what made these two above situations distinctly different was the stressed and incensed reactions to my attempt to resolve the situation. When an opposing party responds with irrationality, it may be time to reach out for legal advice.

Irrational Puss n' Boots?

It is never a bad thing to reach out to a lawyer to use as a sounding board for extreme issues within the workplace. Being that I am an independent contractor and my partner owns his own business, we hold legal insurance that allows us to get counsel at no additional charge beyond our monthly fee. When stress, money, intellectual property, and/or passion for your work are involved, it can be easy to get lost in an irrational place. Speaking with a lawyer can help you determine whether your emotional reaction to the situation is legally rational or just protective.

After having a conversation with an attorney, the next step is to determine if you want to take the plunge and enter a legal battle to resolve your case. While there may be some situations that necessitate suing an organization, I have found that it usually isn't worth your time to spend the emotional energy that is required to fight for what is right. It is a sad, sad situation, but people in the arts are generally reluctant to go the lengths that it takes to protect themselves from wrongdoing.

The first reason for this is due to poor funding. This works on both sides. Rarely does an organization have the money to fight a legal battle. It is also rare that a dancer or choreographer has the funds to hire an attorney to represent them. Beyond this, the dance world often lets go of minor issues, which is representative of the submissive nature of dance artists. Lastly, the dance world is so closely connected that if a dancer is to sue a company, other employers may fear hiring that dancer out of fear that they will sue their own organization.

Two examples that I am aware of with dancers suing companies involved two friends of mine. The first situation was when a dancer was representing the other dancers of a non-unionized company. When the organization decided to stiff the dancers on per diem from their international travels, this dancer contacted a lawyer and started working to help the dancers collect their contractually agreed travel pay. At the end of that season, the dancer was not reengaged and lost their job.

The second dancer I know who sued a company was put in a position where they were essentially forced to break their contract. They sought counsel to make the company follow through with paying the rest of their contract for that lost season. While I don't remember whether they won or lost that battle, I heard whispers from others in the new company that we were dancing with blaming that dancer for creating that situation. This seemed odd considering none of us were present in that company when things went down.

Challenging times can make one lose faith in the dance world; a place of beauty, perfection, and dreams. While the modernized world has a system for those who have been wronged to fight to protect their rights, the dance world sometimes feels like it exists on another plane. I don't feel that it is appropriate for me to guide anybody towards seeking counsel. Instead, I can provide information to help dancers and choreographers make their own decisions. I have always been an advocate for dancers and choreographers to protect their rights. This would lend me to offering the advice to fight for them. At the same time, there is a great deal of time and emotional energy that must go into legally resolving situations. Consider how important the violation of your rights is to you and the amount of yourself you are willing to put into a legal battle. Also weigh the possible repercussions, fair or not, that you may experience for trying to protect yourself. While this dance world isn't always fair, it is our passion. And sometimes you need to give up a little of yourself to share in this beautiful place.

It is beautiful, isn't it? (A local sculpture in Philadelphia)

Injuries: How to Handle Injury & Preventable Factors

On the table with one of my favorite people, PNB Physical Therapist Boyd Bender

I feel it is time that we have an open, honest conversation about injury. One of the worst things you can do in this dance world is to speak publicly about a current injury. A dancer doesn't want to be thought of as weak, a liability, a repeat offender, or anything else. Even worse, a dancer doesn't want an employer to turn to them years after their last injury and say, "I read that you've had this injury before and you lied about your health when you arrived." But I am going to do it anyway. I am going to proclaim in public that I am injured. I feel that it is important that dancers stop hiding issues like this and speak out about our experiences. Every professional dancer will face injury at some point, and while many will share their comeback stories after they're fully recovered, few will share about it as they are going through it. Yes, I have been lucky enough to spend the last 2 1/2 years healthy (albeit minor aches and pains). But today, and for the last month, I am suffering from an injury that kept me from performing at my last gig and has forced me to take the last month completely off from most physical activity.

Where does one start with a topic like this? Usually the first question is, "How did you get injured?" Again, another taboo topic, but I'm gonna be as honest as possible here. While there are times that a dancer may become injured due to some freak occurrence, one can usually look to a variety of components that contributed to their injury. I have a pretty clear idea of what caused me to suffer a lumbar (lower back) sprain.

There are what I consider to be four factors that, when neglected, often lead to a dancer's body breaking down. Rehearsal/ performance conditions, rehearsal procedures, physical maintenance, and rest periods. When I became injured back in the beginning of May, I felt that three of these factors had absolutely contributed to me needing to pull myself out of a performance series.

When it came to rehearsal conditions, we rehearsed for weeks on end in a studio that was not sprung and without proper heating. Throughout the rehearsal period, we were also asked to perform on concrete at multiple venues indoors and outside, often without any spacing rehearsals.

Our rehearsal procedures were also uncommon throughout much of the process. While we had six weeks to prepare for our performances, we learned a majority of our choreography at breakneck speed. After urgently learning the material, we immediately began running the complete works full-out. A very important part of the rehearsal process was lost. The actual rehearsing, digesting of material, and building of stamina. As for rest periods, our typical 2-day weekends during rehearsal weeks were often taken away by outreach and event performances.

What I looked like sleeping in that child's loft bed

Lastly, housing wasn't provided for out-of-town dancers. I definitely learned my lesson here, as a host that I found through a home-exchange website stopped responding to my messages after I had already arrived. This left me to move 5 times over 5 weeks; sleeping on couches and a child's loft bed for an entire month. While I made sure that I had enough sleep, my body and mind couldn't ever fully rest. Not having a proper place to sleep surely had a great impact on my spinal health.

It seems that the only factor that was positively met during my stint was in my physical maintenance. I found a great chiropractor, San Francisco-based Dr. Kevin Linzey, who not only was a skilled practitioner, but cared more about my ability to practice my art than charging me a rate I couldn't afford. If you look at all of these items, you can see that it came as no surprise that I left this gig in so much pain that it prevented me from performing.

In a full-time company without freelancers, there is a common procedure that most dancers follow when it comes to an injury. Initially, most dancers aren't sure if their injury will improve enough to perform. Unless they experience a fracture or major sprain, there is always the possibility that the dancer can dance through/around their pain. It isn't uncommon for a dancer to mention to artistic staff that they have an injury and need to rest for a few days or take it easy in rehearsal. This period is an assessment for the dancer to determine if treatment and/or rest is improving their condition or if it is going to take a longer period of time to get better. Once a dancer determines that they are unable to dance, the director will usually find a replacement for the dancer and allow the injured dancer to take the necessary time to rehab and get better. From here, a dancer will usually open a worker's compensation claim, which is their legal right as an employee of the organization. Generally, worker's comp will provide the necessary treatment (doctor, X-ray, MRI, therapy, surgery, etc) for a dancer to get back on point. Beyond taking care of treatment, worker's compensation will often pay a portion of an injured dancer's salary, so that they can sustain themselves during the recovery process.

The initial stage of dealing with an injury as an independent contractor looks very much like that of a fully contracted dancer. When I woke up one morning barely able to walk, I sent the director an email giving him a heads up about my condition. Following the email, I hobbled on in to the studio to have a conversation and come up with a plan. Prior to entering the studio, I had already come up with my own ideas of how to resolve my potential absence. If you enter a tricky conversation with a plan, it can likely alleviate some of the stress that an injury can throw on an organization. Most freelancing jobs that I have worked have used 10 or less dancers. One dancer going out can cause a lot of stress and panic when there is nobody to cover for that person. My plan took into account that we had a week and a half before the performances. If I acted immediately on my pain and took myself out of the show, I may have put undue stress on the company had my back calmed down quickly. I told the director that I was going to get as much treatment as possible and would give them an answer by the beginning of our performance week, if not earlier. We, then, agreed that I would teach other dancers significant parts of choreography (as much as I could in my state) that only I knew. I also mentioned that I had some strong medication to help with my inflammation and that I would take it to give myself the best chance of a quick recovery (I always ask my doctor for a prescription when I travel for work in the event of an emergency while I am away from home. I have never used it in my 3 years of freelancing until this moment. Still, most any traveling freelancer should carry emergency medication with them in the event that they get injured. This saves a great deal of time, money, and stress). Once I had fully informed him of the possible scenarios, it was his choice to wait or take me out of the shows. We agreed to wait.

The hardest part about assessing an injury while nearing a performance period is staying calm. Most people's natural tendency is to keep testing their injured area to see if it is feeling well enough to perform, whether taking class or stretching into the injury. I really wanted to jump into class to see how much I could do when the medication started kicking in and relieving my pain. But I knew that I needed a few more days before I could test anything. Once I finished the medication and most of the inflammation had dissappated, I tested out my back with a few exercises at home. When I realized that twisting and bending was still causing me pain, even with my recovered mobility, I immediately messaged the director that I would need to pull out of the performances. I did this a day earlier than we agreed. I figured that the more time the company had, the more prepared my colleagues would be and the less stress would be added to their preparations.

Freelance dancers, unfortunately, don't have the privilege of utilizing their employer's worker's comp if they get hurt on the job. Since most freelancers are independent contractors, the leadership of different dance companies have absolutely no responsibility to a dancer beyond paying them and other loose terms in their agreement, even if they contributed to them getting hurt. If a director doesn't provide a safe workplace and a dancer chooses to continue with that production, the dancer has to deal with the conditions, speak up in hopes of resolving the issues, or, in a last resort, quit the job. If, like me, a dancer does become injured, they are on their own in taking care of their health.

My E-stim unit (my savior)

As soon as I became injured, I had an appointment with the chiropractor I had found. I also started seeing an acupuncturist, getting massage, and using an E-stim (electrical stimulation) unit that I was given by my physical therapist when I had been previously injured. While I knew I couldn't afford to pay for multiple treatments per week, I sucked it up and put nearly $300 on my credit card during the first week alone to try and get better. Not only was I losing money for therapy, but I was also in danger of losing money because I could no longer fulfill the terms of my contract. I knew that this would be a great financial stress for me, so I went ahead and asked the company if I could perform office work to continue getting paid. My flight didn't leave for another week after I stopped rehearsing and if I couldn't pay for my therapy, I surely couldn't afford to pay to change my plane ticket. Also, if I was still in town, I might as well make myself useful. This is always a reasonable request to consider if you are hurt and have to remain on location.

Luckily, the company agreed to let me do this, and I continued helping the organization by writing a blog, doing menial office work, and speaking at outreach events. While it was very helpful that the company was willing to do this for me, they had no responsibility to agree to it. Since returning home, I have taken nearly a month off with no physical activity for 2 weeks. I started incorporating gym exercises on week 3 and yoga on this 4th week. I have also maintained my therapy and am on a clear road to recovery, if hurting a bit in my pocketbook.

Now that I am home and have spent the last month recovering (and I'm feeling a lot better), it is easier to look back and see where things went wrong. There were multiple factors that amounted in my getting injured. It is clear to me that prevention is the most important item I would like to address in this post. I did my best when I began to fear for the worst by pulling the director aside and speaking about my concerns. After a good conversation, unfortunately, the conditions only showed minor improvement. At that point, I had to make a decision. Do I quit the gig or do I continue dancing in an environment that has a high risk for injury? For multiple reasons, I decided that quitting just wasn't the right decision. Once I did become injured, I handled the situation in a very thoughtful and respectful manner.

While injuries are not always preventable, they can be greatly reduced by considering the conditions and procedures that dancers have to rehearse in. I call on all companies that hire freelancers to please think about the four factors I've mentioned above before hiring dancers as independent contractors. While you are hiring them to help raise your level of dancing, create something new, or to fill in gaps in your productions, please take into consideration that our health is extremely important to us and our survival is our body. If conditions are dangerous and a dancer gets injured, you have no obligation to them. If a freelance dancer gets hurt because of conditions that could have been prevented or thought out more carefully, they can't make a living, may struggle to pay and get care for a faster recovery, and may lose their dancing career altogether. I urge each and every employer to consider what I have written and to do their best to assure dancers who are independent contractors (or any dancer) a safe and respectful environment.

PLEASE DON'T HURT ME