Reply
 
Thread Tools Display Modes
  #1  
Old 09-14-2019, 08:48 PM
Jumpbass's Avatar
Jumpbass is offline
Guest
 
Join Date: Jun 2009
Location: Napa Valley (lucky me)
Posts: 465

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.
  #2  
Old 09-14-2019, 08:56 PM
nightshadea is offline
Guest
 
Join Date: May 2001
Location: a condo in hell 10th lvl
Posts: 5,688
oh wow this thing could cause many performance career paths problems ..... exotic dancers, musicians, pro wrestling , movie extras .....
  #3  
Old 09-14-2019, 09:01 PM
Bone's Avatar
Bone is online now
Extrajudicial
Moderator
 
Join Date: Jul 2003
Posts: 10,860
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.

Last edited by Bone; 09-14-2019 at 09:02 PM.
  #4  
Old 09-14-2019, 09:10 PM
sps49sd is offline
Member
 
Join Date: Feb 2009
Posts: 554
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.
  #5  
Old 09-15-2019, 12:14 PM
Jumpbass's Avatar
Jumpbass is offline
Guest
 
Join Date: Jun 2009
Location: Napa Valley (lucky me)
Posts: 465
Quote:
Originally Posted by Bone View Post
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.
  #6  
Old 09-15-2019, 01:41 PM
Sam Stone is offline
Charter Member
 
Join Date: Jun 1999
Posts: 28,209
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.
  #7  
Old 09-15-2019, 02:13 PM
Ludovic is offline
Charter Member
 
Join Date: Jul 2000
Location: America's Wing
Posts: 30,393
Quote:
Originally Posted by nightshadea View Post
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".
  #8  
Old 09-15-2019, 08:42 PM
foolsguinea is offline
Charter Member
 
Join Date: Jan 2000
Location: Tornado Alley
Posts: 15,838
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?

Last edited by foolsguinea; 09-15-2019 at 08:42 PM.
  #9  
Old 09-15-2019, 08:56 PM
Ethilrist is online now
Guest
 
Join Date: Nov 2000
Location: Saint Paul
Posts: 26,950
Quote:
Originally Posted by foolsguinea View Post
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...
  #10  
Old 09-15-2019, 11:08 PM
Bone's Avatar
Bone is online now
Extrajudicial
Moderator
 
Join Date: Jul 2003
Posts: 10,860
Quote:
Originally Posted by foolsguinea View Post
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.
  #11  
Old 09-16-2019, 11:59 AM
enalzi is offline
Guest
 
Join Date: Apr 2008
Location: Chicago, IL
Posts: 8,183
Isn't the ABC test already part of the law because of the court decision?
  #12  
Old 09-16-2019, 12:10 PM
Bone's Avatar
Bone is online now
Extrajudicial
Moderator
 
Join Date: Jul 2003
Posts: 10,860
Quote:
Originally Posted by enalzi View Post
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.
  #13  
Old 09-16-2019, 12:59 PM
Stana Claus is offline
Guest
 
Join Date: May 2002
Location: Way South of the N Pole
Posts: 414
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?
__________________
"Can we take a direct flight back to reality or do we have to change places in Denver? "
  #14  
Old 09-16-2019, 02:43 PM
Jumpbass's Avatar
Jumpbass is offline
Guest
 
Join Date: Jun 2009
Location: Napa Valley (lucky me)
Posts: 465
Quote:
Originally Posted by Stana Claus View Post
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.
  #15  
Old 09-16-2019, 02:51 PM
Sam Stone is offline
Charter Member
 
Join Date: Jun 1999
Posts: 28,209
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.
  #16  
Old 09-16-2019, 02:52 PM
Sam Stone is offline
Charter Member
 
Join Date: Jun 1999
Posts: 28,209
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.

Last edited by Sam Stone; 09-16-2019 at 02:56 PM.
  #17  
Old 09-16-2019, 02:55 PM
Stana Claus is offline
Guest
 
Join Date: May 2002
Location: Way South of the N Pole
Posts: 414
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.
__________________
"Can we take a direct flight back to reality or do we have to change places in Denver? "
  #18  
Old 09-16-2019, 02:59 PM
Jumpbass's Avatar
Jumpbass is offline
Guest
 
Join Date: Jun 2009
Location: Napa Valley (lucky me)
Posts: 465
Quote:
Originally Posted by Stana Claus View Post
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.
  #19  
Old 09-16-2019, 03:24 PM
Bone's Avatar
Bone is online now
Extrajudicial
Moderator
 
Join Date: Jul 2003
Posts: 10,860
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.
  #20  
Old 09-17-2019, 04:15 PM
iamthewalrus(:3= is offline
Guest
 
Join Date: Jul 2000
Location: Santa Barbara, CA
Posts: 12,029
Quote:
Originally Posted by Sam Stone View Post
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.
  #21  
Old 09-18-2019, 03:54 PM
Snowboarder Bo's Avatar
Snowboarder Bo is online now
Member
 
Join Date: May 2005
Location: Las Vegas
Posts: 27,526
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."

Last edited by Snowboarder Bo; 09-18-2019 at 03:58 PM.
  #22  
Old 09-18-2019, 04:17 PM
Elusive is offline
Guest
 
Join Date: Aug 2001
Location: Oregon
Posts: 23
Quote:
Originally Posted by Jumpbass View Post
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).
  #23  
Old 09-18-2019, 05:08 PM
Ludovic is offline
Charter Member
 
Join Date: Jul 2000
Location: America's Wing
Posts: 30,393
The origin of the world penis ensues.
  #24  
Old 09-19-2019, 09:31 AM
Translucent Daydream is offline
Guest
 
Join Date: Nov 2005
Location: Grand Valley
Posts: 1,820
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.
__________________
I promise itís not as bad or as good as you think it is.
  #25  
Old 09-19-2019, 09:52 AM
Jumpbass's Avatar
Jumpbass is offline
Guest
 
Join Date: Jun 2009
Location: Napa Valley (lucky me)
Posts: 465
^ Yeah, that's what I'm hoping. I still haven't heard from my senator. Gonna have to rattle his cage.
  #26  
Old 09-19-2019, 10:06 AM
Translucent Daydream is offline
Guest
 
Join Date: Nov 2005
Location: Grand Valley
Posts: 1,820
Quote:
Originally Posted by Jumpbass View Post
^ 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."
__________________
I promise itís not as bad or as good as you think it is.
Reply

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 10:37 PM.

Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2019, vBulletin Solutions, Inc.

Send questions for Cecil Adams to: cecil@straightdope.com

Send comments about this website to: webmaster@straightdope.com

Terms of Use / Privacy Policy

Advertise on the Straight Dope!
(Your direct line to thousands of the smartest, hippest people on the planet, plus a few total dipsticks.)

Copyright © 2019 STM Reader, LLC.

 
Copyright © 2017