Many Musicians Exempt From Controversial Gig-Worker Law Under Proposed Changes

An agreement has been reached to exempt certain musicians and music professionals from AB5, the gig worker assembly bill. (iStock)

When concerts resume in California, many musicians will have one less thing to worry about.

Industry groups and elected officials have reached an agreement to amend Assembly Bill 5 (AB 5), the controversial gig worker law, to exempt certain musicians and music professionals.

AB 5 was intended to protect worker’s rights by making it more difficult for so-called “gig economy” companies such as Uber and Lyft to classify their drivers as independent contractors.

But the bill, signed into law in September, has drawn criticism from independent musicians who say it increases their costs and limits their opportunities for work. The pending amendments announced this month are designed to address these unintended consequences.

The amendments exempt musicians and music professionals whose work is primarily original and inventive, as opposed to directed by an employer. Still, AB5 will continue to apply to significant groups of musicians, including performers in orchestral, festival and theme park settings.

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“The Bay Area music community has been almost completely unified in its desire to see our state government acknowledge and address the deleterious effects of AB 5 on music industry workers,” Karl Alfonso Defensor Evangelista, an Oakland composer and improviser who’s organized local experimental musicians to oppose the law, said in a statement to KQED.

Evangelista said that while he awaits the final language and believes other local industries remain adversely affected by the law, he welcomes the amendments. “I speak on behalf of many of my colleagues when I say that this music exemption is a step in the right direction.”

Evangelista continued, “This is going to have a positive effect on a lot of musicians and institutions that are already suffering the pandemic lockdown.”

Kale Cumings, president of American Federation of Musicians Local 6 in San Francisco, who helped negotiate the amendment, said in an interview that the changes avoid imposing an onerous employer-employee relationship on most musicians in collaborative situations.

But, Cumings added, neither the law nor the changes address the lack of a safety net for freelance musicians—as this season’s concert cancellations have shown. “The conversation it’s brought up is very important,” he said. “How to organize musicians in a way that doesn’t penalize or limit their independence but still brings them into the American workforce?”

AB 5, authored by San Diego assemblywoman Lorena Gonzalez, codifies a 2018 California Supreme Court decision by establishing a three part “ABC Test” to determine whether or not companies can classify workers as independent contractors. The idea is to afford many gig economy workers employee protections such as health coverage and workers compensation.

But the test's requirement that freelancers perform work outside of the employer’s main business would upend the model of small music venues and nonprofit performing arts presenters. These employers would have to onboard performers as regular employees for even one season or event, and musicians found many employers would opt to reduce bookings instead of comply.

As a workaround, many musicians contemplated forming their own limited-liability corporations, but related expenses would eat into their already-thin profit margins. Further, this would force them to hire backing musicians as employees even for one recording session or performance, sowing confusion among collaborative ensembles and for artists who alternate as band leaders.

For these reasons and more, the bill drew opposition from groups including the Recording Industry Association of America, American Association of Independent Music, American Federation of Musicians and Music Artists Coalition. Most industry opponents supported the spirit of the bill while calling it ill-suited to the music recording and performance ecosystems.

After more than a year of consulting with the industry, Gonzalez and the groups announced the exemptions on April 17. The “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,” Gonzalez said in a statement.

The amendment broadly relieves musicians, composers, songwriters, engineers and others involved in the music production process of applying the law’s ABC test. They can continue to use a previous standard for determining if someone is an employee known as the Borello test, which mainly hinges on whether or not a worker controls the manner and means of the work.

The amendment also applies the previous, less-strict test to musicians in standalone live performances, unless they’re a part of a group headlining at a concert venue with more than 1,500 attendees or performing at a music festival that draws more than 18,000 attendees. In other words, AB-5 would apply to performers at, say, Outside Lands or the Bill Graham Civic Auditorium.

Then there’s the exemptions from the exemption: Musical groups regularly performing at theme parks, and musicians in symphony orchestras, performing as a part of a tour or performing in a musical theater production are still subject to the AB 5 standard. The reason, according to Gonzalez’s statement, is these musicians are significantly controlled or directed by employers.

“The amendment appropriately narrows the effect of AB5 to clarify that music professionals, due to the unique nature of our business, cannot be treated as an employer every time they collaborate,” Mich Glazier, chairman and chief executive of the Recording Industry Association of American, said in a statement.

“Having worked personally with every stakeholder in the process for the last year, I can say that each elected official, coalition, association, union and individual working on behalf of their constituency truly cared about not only the members they work to protect, but also our industry as a whole,” added Jordan Bromley, a Music Artists Coalition board member, in a statement.

The amendments will be voted on when the legislature reconvenes. If passed, they would go into effect Jan. 1, 2021.