Quick Hits

  • Employees appearing on reality competition shows may create headaches for employers.
  • If confronted with an employee’s request to appear on a reality show, employers may want to consider the type of show, the time commitment, and the risk of negative attention.

There is an increasing number of reality television shows on cable and streaming providers, making it more and more likely that employers will be confronted with the “reality” of employees seeking to be cast or asked to appear on a show and whether employers should permit such an appearance.

Generally, private employers are not required to permit employees to take time off for the purpose of filming a reality show and have wide discretion to discharge employees for their conduct on the show. At the same, employers may take pride in having an employee featured on a popular show (so long as that employee’s show-conduct does not serve to impugn or embarrass the employer).

With the recent controversy and new seasons of some of the country’s favorite reality television shows ongoing or set to begin in the new year, it is a good time for employers to consider several key questions regarding employee appearances on a television show representing the employer.

1. Must employers allow employees time off for reality TV appearances?

Generally, there are no employment protections that would obligate an employer to give an employee time off for a reality show. In the event an employee does request time off to appear on a reality television show, such leave is not likely to qualify for any type of mandated federal or state protected leave and the employer is generally under no obligation to grant such a request. An employer may consider allowing the employee to exhaust paid time off (PTO) and then take unpaid leave if additional time to film is necessary.

Some employers have policies already in place, or employee contracts that permit leaves of absence or sabbaticals. These may provide the basis to pursue outside projects and appearing on a reality show may qualify for such leave. Under such circumstances, those employers may want to avoid denials of leave that may be considered arbitrary or based on an employee’s membership in a protected group under state or federal law.

In the event that an employee does take time off to film without notice or permission, employers are generally free to discharge the employee as almost all U.S. states support at-will employment, meaning employers may discharge an employee at any time for any lawful reason

2. Would reality show appearances be protected as a lawful off-duty activity?

When an employee is on PTO for the purpose of filming a reality show or outside of the employee’s regular work hours, employers may have more limited discretion in terms of disallowing it. Several states—California, Colorado, Louisiana, New York, and North Dakota—have laws prohibiting employers from taking adverse employment actions against employees for lawful off-duty conduct, which might include television appearances filmed outside of work hours.

Off-duty conduct laws tend to protect recreational or political activities that occur off an employer’s premises and outside of work hours. For instance, in New York, employers are prohibited from discriminating against employees for lawful off-duty activities, except in certain situations including where the employee’s conduct creates “a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest.”

Employers may want to consider reviewing employee policies and rules for speaking to the media and posting on social media to ensure that they cover an employee’s conduct on a reality show. There may be additional considerations for public employers, which may be more limited in restricting employee speech and conduct under the First Amendment, or for unionized employers where a collective bargaining agreement contains protections for off-duty activities or speech.

Additionally, the National Labor Relations Board (NLRB) has recently taken an expansive view of speech that may constitute protected concerted activity under the National Labor Relations Act (NLRA) (although it is less likely that this will apply to employee conduct and comments on a reality show).

3. Would appearing on a reality show be considered ‘Moonlighting?

Filming a television show may be considered an outside job, especially if the reality show pays cast members. In general, employers may restrict employees from taking outside work, or “moonlighting,” if that second job substantially interferes with or competes with their main job or impacts their ability to perform their main job. Employers may want to consider requests from employees to join a reality show in light of whether the employer has compliant policies against outside work.

4. Can an employer prevent an employee from identifying the employer?

Reality shows often identify the job or profession of cast members without identifying where the cast member is actually employed. Many employers may not wish to be associated with the reality show by name because of concerns that  the content of the show and/or how the employee might be portrayed might negatively impact an employer’s reputation or that the appearance or portrayal of the employee might further create compliance issues.

Therefore, an employer might consider discussing with an employee the employee’s intent and the reality show producers’ expectations for what will be revealed about the employee cast member’s professional life in order to come to a mutually beneficial understanding.

However, employers may want to consider the possibility that even when the employer is not identified by name, certain cues (perhaps combined with a bit of social media sleuthing by overzealous fans) can reveal a cast member’s employer. Even minor slips, such as a notebook or mug with a company logo on it somewhere in a camera shot, can reveal a cast member’s real-life employer and trigger unwanted attention.

5. What if the employee is the show ‘villain’ or engages in misconduct?

Reality shows are entertainment, which often means the producers need to identify a “villain” to make headlines or create drama. Producers also may take liberties with editing that portray certain actors in a negative light. The editorial decisions are outside of the control of the employer and an employee saying something lewd or offensive, or doing something outrageous and/or embarrassing (even off-camera or cut from the show) can draw negative attention to the employee, and by extension, his or her employer.

Specifically, reality cast members have been kicked off of shows for misconduct, whether on or off camera, including for aggressive behavior, extreme or inappropriate comments, or resulting from allegations of assault, domestic violence, or sexual misconduct. Reality shows often involve dating and relationships and put those relationships under stress, making controversies involving allegations of domestic violence or misconduct a risk. Employers may want to consider these potential outcomes and whether it may be necessary to take the step of discharging or disciplining the employee to avoid potential liability and to ensure that other employees continue to feel safe.

Key Takeaways

The appeal of reality shows is that the cast members are real, relatable people with jobs and families. It can be exciting for an employer and its employees to see one of their own on a reality show, but such an appearance can cause headaches for the employer.

If confronted with the prospect of an employee being cast to appear on a reality show, employers may want to consider the type of show, whether the time commitment could otherwise impact the employee’s productivity, and the potential for the employee’s appearance to garner negative attention for the employer and its business.

Ogletree Deakins will continue to monitor such issues and will provide updates on the Employment Law and Sports and Entertainment blogs.

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