Some Musicians to Get Relief from California “Gig Economy” Bill

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By Michael Pohl Photography

Musicians will be provided relief under a new agreement in Assembly Bill 5, a gig economy bill, that will protect music professionals, including recording artists, musicians, composers, songwriters and vocalists.

AB 5 was introduced to protect the gig economy workers rights by changing their status from independent contractors to employees. The bill was aimed at companies like Uber and Lyft ride-sharing companies.

The bill put a strain on local performers who before AB-5 were considered self-employed. After the Bill became law, the legislation reclassified them as direct employees of the venue—instead of checks, they received a W2 form along with protections from unemployment insurance and social security benefits to workers compensation coverage. Meanwhile, backup singers and players hired by an artist would have those same protections—the result was many didn’t want to deal with the expenses and red tape which resulted in many venues stopping live entertainment across the state.

Last week, Assemblywoman Loran Gonzalez (D-San Diego) and Assembly Majority Leader Ian Calderon (D-Whittier) announced amendments to Assembly Bill 5 that were aimed to protect workers and preserve musician’s ability to collaborate within the industry.

Assemblywoman Gonzalez introduced legislation in January to continue working on the issues affecting a variety of industries following the unanimous 2018 California Supreme Court’s Dynamex decision that established a three-part ABC test for determining employment status.

Upon the Legislature’s reconvening from its recess, Assemblywoman Gonzalez will make changes to how AB 5 applies to professions in the music industry. Under the ABC test and the (pre-Dynamex) Borello test, employment status has always been determined based on whether a hiring business can impose a significant level of control and direction on the manner and means by which a worker accomplishes their task.

According to the announcement on April 17, musicians will now fall under the Borello test to determine their status which will help them retain a greater ability to influence their working conditions, and possess more creative independence and professional autonomy over their work when collaborating with other artists to produce a song or put on a live performance.

“For nearly a year and a half, I have engaged with individual musicians, the recording industry, and unions representing musicians and artists to understand how the California Supreme Court’s Dynamex ruling and AB 5 has impacted their work,” Assemblywoman Gonzalez said. “In partnership with Majority Leader Calderon, I’m pleased to say that representatives from across the music landscape have reached a consensus to move the industry forward when it comes to workplace rights. When the Legislature reconvenes, new amendments will acknowledge and add to the existing flexibility California has allowed in the music industry while protecting the right for musicians to have basic employment protections just like every other worker.”

Meanwhile, Assemblymember Kevin Kiley continues to seek suspension of AB-5 during the virus pandemic and even up to last week was asking the Governor to suspend the Bill highlighting how over 150 California economists and professors sent the Governor an open letter calling on him to suspend AB 5.

“If Governor Newsom believes in putting science before politics, he should listen to our state’s leading economists rather than special interests and political allies,” Kiley said. “Keeping AB 5 in place while Californians remain at home defies expert opinion, common sense, and basic decency.”

 Amendments to AB-5

With respect to the music production process, the amendments will preserve the ability for the following industry professionals to collaborate and contract with one another to produce sound recordings and musical compositions without application of the ABC test to determine an employer:

  • Musicians, vocalists, and other recording artists
  • Composers
  • Songwriters
  • Lyricists
  • Musical engineers
  • Sound mixers
  • Record producers
  • Others involved in the creating, marketing, promoting or distributing of the sound recording or musical composition

With respect to standalone live performances, the amendments will also specify that unless a musical group specifically falls into one of groups below, the musicians will be subject to the less strict pre-Dynamex test to determine classification. This allows most independent musicians to collaborate with one another in their live performances, without becoming each other’s employees.

  • The main featured act headlining at a concert venue with more than 1,500 attendees or;
  • Musical group performing at a large festival with more than 18,000 attendees per day.

Instances where the nature of a musician’s work inherently draws a significant level of control and direction from their employer, musicians will continue to have employment protections under AB 5. This includes the following arrangements:

  • A musical group regularly performing in a theme park setting,
  • A musician performing in a symphony orchestra,
  • A musician performing as part of a tour of live performances,
  • A musician performing in a musical theatre production.

The amendments that add greater opportunity for collaboration in musicians’ work arrangements will be applied retroactively.