The California State Assembly recently passed AB 5, which is an act to amend the Labor Code, relating to employment and independent contractors. This bill is now awaiting the signature of Governor Newson. AB-5 has expanded since its inception. It is a very dense piece of legislation and there will be many court challenges. Of concern to many workers is the language regarding the determination of 1099 independent contractors (IC) vs. W-2 employees. This can affect many industries, including freelance musical work.
Vice President Edmund Velasco from Local 7 (Orange Co.) was able to question Chas Alamo from the California Legislative Analyst’s Office. Although this isn’t the final word, the answers were helpful regarding live performing musicians.
Will restaurants that have music have to hire the bands as W-2 employees?
No since food is the main business and the pay and times are negotiable, bands and the musicians in them would still be considered ICs.
Will band leaders be considered employers even if the members are never or rarely the same?
No, since the musician is free to turn down work without suffering damages.
If entertainment companies (Theme Parks and other large entities) have been hiring band as independent contractors on a regular basis, will they finally be classified as employees?
Yes, since they are in control of the venue and are in the same umbrella, entertainment.
Will private teachers still be considered independent contractors if they are hired by a school to teach private lessons to their students?
Unclear, but most likely no. This will have to be defined by the CA Labor Board. If you rent a space in a studio, set your own hours, you are an IC.
Will large venues be employers for big name Acts as well as opening Acts?
If the act is an LLC, they will not be deemed employees of the venue. If they have signed a “non-competing” clause (they cannot perform for a period of time in an area for a specified time in that area), they would be considered employees because of the restricted nature of the agreement regardless if they are an LLC.
For a link to the bill text, click here.