For Some Small Arts Groups in CA, Adhering to Labor Law Means Not Paying Artists

The California arts and culture sector has long relied on a freelance workforce.

The vast majority of the state’s roughly 4,000 performing arts organizations have budgets of less than $1.5 million.

Used to hiring artists who work as independent contractors in exchange for program or project fees, it’s been tough for these small nonprofit arts groups in particular to adapt to AB5, the labor law intended to give the state’s workers more benefits by preventing employers from misclassifying them as contractors in order to save money.

“It’s just really challenging, not just in terms of money to pay for the higher expenses of having employees versus independent contractors, but time as a resource too,” says San Jose Taiko Executive Director Wisa Uemura.

Nevertheless, Uemura says she welcomes the shift.

“I like the idea that we’re being held more accountable and we have to be more careful,” Uemura says.

As does circus performer Indi McCasey, executive director of Arts Education Alliance of the Bay Area.

“I see AB5 as having the potential to really address ongoing labor issues for teaching artists,” McCasey says. “And I personally and professionally see it as a positive shift for community arts organizations.”

For some organizations, turning contractors into volunteers is simply unthinkable.

Ophelia’s Jump is a theater group located on the border between Los Angeles and San Bernardino counties that focuses on centering underrepresented voices and narratives. The company frequently hires women, LGBTQ+, BIPOC and disabled performers.

Co-founder Beatrice Casagran says asking artists to volunteer their time would undermine the company’s diversity-focused mission.

“It would be really ironic and sad if this company that has always paid artists all of a sudden had to say, ‘You know what, we’re not paying you anymore,’” Casagran says. “Because I think that message is exactly the wrong message.”

So in order to meet payroll costs, Casagran has had to drastically scale back operations, doing virtual staged readings that require very little rehearsal time during the pandemic, and planning for reduced-scale live shows once theaters can reopen, featuring a maximum of four actors and four weeks of rehearsal.

Casagran would like to see the state’s labor laws change so small companies like Ophelia’s Jump have more flexibility to produce the work they want to produce on their own terms.

“Finding something that would allow us to pay artists on a fee-based contract rather than as hourly workers would be the way to go,” Casagran says.

Pushback from parts of the creative sector has led to a more recent law—AB2257—that now allows some arts workers to freelance if they meet certain employment conditions.

But Lorena Gonzalez, the San Diego assemblywoman who authored both AB5 and AB2257, is wary of exempting more employers from compensating workers properly—especially since the companies for whom these laws were originally created, gig economy tech giants like Uber and Lyft, managed to wriggle out of having to comply with them when California voters passed Proposition 22 last November.

“There is a need to professionalize the arts in a way that people can make a real living off of it,” Gonzalez says. “And we’ve got to come to terms with ways in which that can be done.”

Gonzalez has floated a few possible solutions, ranging from state funding to help small arts groups comply with labor laws (though that idea went by the wayside early last year after the pandemic changed state funding priorities) to creating cooperatives to enable them to share the cost of workers comp.

But a more fundamental shift is needed to solve the equity issues that have long kept careers in the creative industries out of reach for those who can’t afford to work for very little or, in some cases, for free.

“AB5 and AB2257 are looking to solve the misclassification issue, and we know that even if folks are properly classified in the arts community as employees, that still is going to leave a good balance who are genuinely independent arts workers,” says the Hewlett Foundation’s Ono. She points out that protections that should apply to all working people still flow through employers. “Now that work is changing, those protections aren’t flowing to independent workers because of how the system was set up a long, long time ago.”

If nothing else, the unintended consequences of AB5 and AB2257 on small performing arts organizations, together with the outcome of Prop 22, have shone a light on this deep-seated, systemic problem.

“California is the world’s fifth-largest economy. So the fact that we can’t do better for our workers and our artists and creative communities is disappointing,” says teaching artist McCasey. “We need a bigger public campaign about what we value.”