The streaming giant is a co-defendant in a set-safety lawsuit that may foreshadow other pandemic-era litigation in Hollywood.
During the early days of the pandemic, the prospect of workers suing businesses for not protecting them from the virus was so great that many corporations lobbied for tort protection, aiming to be shielded from negligence claims. And yet there have been few actual lawsuits from the nation’s labor force. Certainly none in Hollywood.
That is, until Jan. 15, when Timothy Hearl became the first actor to sue entertainment employers over COVID-19 working conditions. Unexpectedly, Netflix is one of the defendants in this suit after having made an under-the-radar jump into live entertainment last year with Stranger Things: The Drive Into Experience.
That drive-in show allows fans of the Netflix series to navigate their vehicles through a parking lot styled as the fictional town of Hawkins, Indiana, in 1985, where performers re-create scenes from the show’s third season. Netflix co-produces along with Secret Cinema and Empyrean Production Services. The show, located in downtown Los Angeles and designed for the COVID-19 era, opened in October and closes in March.
For the L.A. drive-in, Hearl was hired to play a Demogorgon, a monster from the series’ Upside Down realm before he was reassigned to play a character who wears a hazmat suit. According to the lawsuit, Hearl expressed concern about the risk of COVID-19 exposure during rehearsals, held indoors. Unsatisfied by the response, he filed a complaint with the California Occupational Safety and Health Administration.
Hearl says he and other actors complained about feeling sick from possible carbon monoxide poisoning due to car exhaust. He adds that some actors had difficulty breathing. OSHA representatives are said to have performed a site inspection of the Stranger Things set. Eventually, Hearl says, his employment was terminated. He now claims his firing runs afoul of California’s Whistleblower Retaliation statutes, which protects employees from retaliation after reporting legal violations to authorities.
A Stranger Things production source says there have been zero positive COVID cases among performers. Producers also have monitored air quality and brought in exhaust fans. Netflix, which declined comment, provided a statement from an Empyrean rep: “The safety of fans and our team members has remained the highest priority since the inception of the Stranger Things Drive Into Experience. There are robust measures in place to protect the health and well-being of everyone on site, and we’re proud that these protocols have resulted in an excellent safety record.”
One reason the entertainment industry hasn’t witnessed worker lawsuits on the COVID-19 front up until this point is because its labor unions have been involved in issuing guidelines about on-set safety and recommending production pauses. That said, the Hearl suit does demonstrate the possibility of litigation should producers not keep up with standards.
That’s especially true as President Biden takes office. One of Biden’s first executive orders was to direct OSHA to provide workplace guidance. And, on Jan. 29, the agency outlined COVID-19 prevention programs, including how to conduct a hazard assessment, how to isolate workers potentially infected, and uses of PPE and ventilation.
This story appeared in the Feb. 2 issue of The Hollywood Reporter magazine. Click here to subscribe.