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-   -   CA AB5- How does it apply to us lowly musicians? (https://boards.straightdope.com/sdmb/showthread.php?t=882060)

Jumpbass 09-14-2019 08:48 PM

CA AB5- How does it apply to us lowly musicians?
 
Mods- please move this if appropriate.

California is working on a bill to make Uber, Lyft, etc call their drivers employees, not independent contractors, thus making them liable to pay them wages, insurance, blah blah blah. I want to know how this affects me, an independent musician.

I'm a bandleader. I hire other musicians as independent contractors to play in my bands. I certainly can't hire them as employees. I'd like someone to help me understand how CA AB5 will affect how I and my colleagues operate.

I tried reading the text of the bill, but I'm not cut out to make any sense of that kind of jargon.

The reason I'm actually researching this is because I have some friends who are getting their knickers in a twist about it. Someone posted an article on FaceBook (I know, I know...) about it that sounded awfully alarmist, and now there's a petition to Gov Newsom to not sign it and it's starting to look like penis will ensue. (To be honest, the article looked to me more like someone was just bashing the Democrats here than trying to help.) I'll try to find the article.

nightshadea 09-14-2019 08:56 PM

oh wow this thing could cause many performance career paths problems ..... exotic dancers, musicians, pro wrestling , movie extras .....

Bone 09-14-2019 09:01 PM

It depends on the nature and specifics of your business, but essentially it codifies the previous dynamex decision creating a 3 factor test for whether a person is an employee vs. contractor. This is different than the previous more loose 11 factor test. It shifts the burden onto the entity, with the ABC test as follows (first link I found):
Quote:

(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;

(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
All must be true for a person to be considered a contractor.

There have been a lot of exemptions written in to the bill, most likely to moot criticism due to its sweeping nature, while still squarely targeting Uber and Lyft.

My understanding is that the RIAA is strongly opposed to the bill, and based on your limited description, it seems like the folks you'd hire would be covered, and therefore be considered employees. This means social security, worker's comp, other payroll taxes, etc.

sps49sd 09-14-2019 09:10 PM

I'm wondering how this will affect Applied Materials and similar companies. AMAT has a few officers and 35 campuses in Santa Clara (I exaggerate, but not by mush) filled with independent contractors.

Many of those contractors were AMAT employees who were "laid off" and then rehired in very similar positions, often at the same desk.

Jumpbass 09-15-2019 12:14 PM

Quote:

Originally Posted by Bone (Post 21861009)
It depends on the nature and specifics of your business, but essentially it codifies the previous dynamex decision creating a 3 factor test for whether a person is an employee vs. contractor. This is different than the previous more loose 11 factor test. It shifts the burden onto the entity, with the ABC test as follows (first link I found):


All must be true for a person to be considered a contractor.

There have been a lot of exemptions written in to the bill, most likely to moot criticism due to its sweeping nature, while still squarely targeting Uber and Lyft.

My understanding is that the RIAA is strongly opposed to the bill, and based on your limited description, it seems like the folks you'd hire would be covered, and therefore be considered employees. This means social security, worker's comp, other payroll taxes, etc.

Hoo boy. Yep, that three part test says it all. I guess I'm off to sign some petitions and call my representatives. (I don't know if it will carry any water, but my state senator hires my band for events.)

Thanks, Bone.

Sam Stone 09-15-2019 01:41 PM

This is what happens when you really want to write a bill of attainder using government power to target companies you don't like, but you have to make it broader so you can get away with it. You get lots of secondary casualties.

Oh well. You've gotta break a few eggs to make an omelette. Who cares about the gig economy or the entertainment economy in California when there are evil corporations to punish? Suck it up, artists - it's for the good of everyone! We can't have people actually choosing how they are willing to work when it doesn't coincide with the progressive ideal or put money in the pockets of union bosses.

Ludovic 09-15-2019 02:13 PM

Quote:

Originally Posted by nightshadea (Post 21861001)
oh wow this thing could cause many performance career paths problems ..... exotic dancers

In some places there already has been issues for them. And headline writers could resist calling it the "giggity economy".

foolsguinea 09-15-2019 08:42 PM

Wouldn't the third factor--
Quote:

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
--be a basis for not calling musicians employees?

Ethilrist 09-15-2019 08:56 PM

Quote:

Originally Posted by foolsguinea (Post 21862644)
Wouldn't the third factor--
Quote:

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
--be a basis for not calling musicians employees?

I would wager that a significant number of the musicians employed ad hoc are not professionally musicians. They might spend more of their time as Lyft drivers, which would be ironic.

Then there's the union to consider...

Bone 09-15-2019 11:08 PM

Quote:

Originally Posted by foolsguinea (Post 21862644)
Wouldn't the third factor--

--be a basis for not calling musicians employees?

It's not only one factor. All factors must be true to be considered a contractor under AB5.

enalzi 09-16-2019 11:59 AM

Isn't the ABC test already part of the law because of the court decision?

Bone 09-16-2019 12:10 PM

Quote:

Originally Posted by enalzi (Post 21863702)
Isn't the ABC test already part of the law because of the court decision?

Largely yes, though without AB5 being codified by the legislature, enforcement would be done through courts. Once made law, the state could bring enforcement action itself.

Stana Claus 09-16-2019 12:59 PM

In the exceptions listed in Section 2750.3(c)(1)(a)(F)(2)(B) Professional Services, (vi) Fine Artist {I think I followed the numbering chain, but maybe not} is listed as exempt. IANAL and may have missed the part that disqualifies this exception, but on first blush it looks to me like Fine Artists are specifically exempted. Then the question becomes, "Are gig musicians fine artists?" Perhaps that depends on the individual(s) involved?

Jumpbass 09-16-2019 02:43 PM

Quote:

Originally Posted by Stana Claus (Post 21863855)
In the exceptions listed in Section 2750.3(c)(1)(a)(F)(2)(B) Professional Services, (vi) Fine Artist {I think I followed the numbering chain, but maybe not} is listed as exempt. IANAL and may have missed the part that disqualifies this exception, but on first blush it looks to me like Fine Artists are specifically exempted. Then the question becomes, "Are gig musicians fine artists?" Perhaps that depends on the individual(s) involved?

Maybe turn the question around. Are fine artists gig musicians? The answer, in my opinion, is yes. Hmm. I'll have to look into that in the text of the bill.

Sam Stone 09-16-2019 02:51 PM

If a musician is a fine artist, then what is a plain artist? Clearly they didn't intend to exempt anyone who claims to be an artist. I suspect this really applies to people like commissioned artists doing portraits, murals, sculptures, etc.

Sam Stone 09-16-2019 02:52 PM

This law was probably secretly funded by Vancouver BC, because they'll be getting a lot more movie and TV work because of this. California is already bleeding jobs in the entertainment field because of the high costs of production. This is not going to help.

Also, the software industry makes heavy use of contractors. This is going to hurt them as well - especially startups who can't afford a payroll in crazy expensive California, and have made do with short and medium term contractors. It's a huge risk management issue - contractors have a fixed and limited downside. Hiring an employee is more risky because of the up-front costs and the risk of lawsuit if you let them go when the finances get tough.

Stana Claus 09-16-2019 02:55 PM

If you get a degree in Music from any given University in the United States, your degree will be a Bachelor/Master/Doctor of Fine Arts. Therefore I would submit that a musician is a practitioner of one of the Fine Arts.

Jumpbass 09-16-2019 02:59 PM

Quote:

Originally Posted by Stana Claus (Post 21863855)
In the exceptions listed in Section 2750.3(c)(1)(a)(F)(2)(B) Professional Services, (vi) Fine Artist {I think I followed the numbering chain, but maybe not} is listed as exempt. IANAL and may have missed the part that disqualifies this exception, but on first blush it looks to me like Fine Artists are specifically exempted. Then the question becomes, "Are gig musicians fine artists?" Perhaps that depends on the individual(s) involved?

I just emailed my state senator about it.

Bone 09-16-2019 03:24 PM

I can't find a definition as it pertains to this new law, but the CA royalty act defines fine art as follows:
Quote:

Fine art" means any work of visual art, including but not
limited to, a drawing, painting, sculpture, mosaic, or photograph, a
work of calligraphy, work of graphic art (including an etching,
lithograph, offset print, silk screen, or a work of graphic art of
like nature), crafts (including crafts in clay, textile, fiber, wood,
metal, plastic, and like materials), or mixed media (including a
collage, assemblage, or any combination of the foregoing art media).
(2) "Artist" means the creator of a work of fine art
Doesn't seem to cover music, but that's not to say this definition would be the one used.

iamthewalrus(:3= 09-17-2019 04:15 PM

Quote:

Originally Posted by Sam Stone (Post 21862001)
Who cares about the gig economy or the entertainment economy in California when there are evil corporations to punish?

This is squarely aimed at the gig economy. It's not a secondary casualty.

California doesn't think there should be "marketplace" companies that facilitate short term work by contractors rather than hiring employees to perform tasks. I think there will be a lot of unintended consequences of this bill and I am worried about it too, but that's clearly an intended consequence.

Snowboarder Bo 09-18-2019 03:54 PM

Newsom signed it!
Quote:

Uber, however, has suggested it won’t implement the new rules come Jan. 1, when the law is set to go into effect. It has joined Lyft and DoorDash in threatening to spend $90 million on a 2020 ballot measure if it can’t negotiate other rules for its drivers with Newsom and unions.
When your business model is based on "we are outside of the law", I bet it's jarring to hear the law say "no, you aren't."

Elusive 09-18-2019 04:17 PM

Quote:

Originally Posted by Jumpbass (Post 21860988)
The reason I'm actually researching this is because I have some friends who are getting their knickers in a twist about it...and now there's a petition to Gov Newsom to not sign it and it's starting to look like penis will ensue.

[Snip]

Can I just congratulate you for this amazing typo? And hearty slaps on the back for everyone in this thread who just let it slide (so to speak).

Ludovic 09-18-2019 05:08 PM

The origin of the world penis ensues.

Translucent Daydream 09-19-2019 09:31 AM

I am not a lawyer, but I employ musicians out of California and have spoken to them. They are supposed to be exempt according to what they have been told because of the fine arts thing that Stanta Claus was saying.

Jumpbass 09-19-2019 09:52 AM

^ Yeah, that's what I'm hoping. I still haven't heard from my senator. Gonna have to rattle his cage.

Translucent Daydream 09-19-2019 10:06 AM

Quote:

Originally Posted by Jumpbass (Post 21869870)
^ Yeah, that's what I'm hoping. I still haven't heard from my senator. Gonna have to rattle his cage.

If it makes you feel better, the trumpet guy I hired for my album said, "Don't underestimate the California Entertainment Lobby."


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