California Alliance for Arts Education and Californians for the Arts held a briefing on AB 5 and its implications for the arts field on March 3, 2021. Attorney Arlene Yang of Meyers Nave provided an overview of AB 5 and the follow-up bill AB 2257 and described how they affect hiring independent contractors. This post highlights some of the key areas covered by Ms. Yang and provides some supplemental resources.
A number of studies have found that between 10 and 20 percent of employers misclassify at least one worker as an independent contractor. See:
- (In)dependent Contractor Misclassification (Economic Policy Institute, 2015).
- Misclassification of Employees as Independent Contractors (US Department of Labor)
- Misclassification of workers as “independent contractors” rebuffed by the California Court of Appeal (California Department of Industrial Relations)
Laws Addressing the Employee – Independent Contractor Distinction
- 1989 – Borello multifactor test
- 2018 – Dynamex ABC test
- 2019 – AB 5 (three-factor ABC test)
See our earlier post California AB 5: Employee or Independent Contractor for more analysis of these earlier developments.
- 2020 – AB 2257 and Proposition 22 (applicable to app-based drivers)
California Assemblywoman Lorena Gonzalez, who authored both AB 5 and AB 2257, acknowledged that the 2019 legislation significantly impacted California’s “freelance writers, photographers, videographers, journalists, individual musicians, the recording industry, and unions representing musicians and artists.” In response, AB 2257 introduced amendments to exempt these creative workers, including “writers, photographers, videographers, photo editors, and illustrators,” acknowledging 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.”
AB 2257 builds on AB 5 and adds many more exemptions. Among its provisions:
Greater clarification on the business-to-business exemption, including allowance of (1) a business service provider’s residence to be their business location and (2) a business service provider to be an individual worker even if not acting as a sole proprietor.
Exemption for freelance writers, translators, illustrators, editors, copy editors, and other types of content contributors meeting certain criteria, including that the individual providing the services is not directly replacing an employee who performed the same work at the same volume for the hiring entity.
Exemption for musicians and other music industry professionals, in some cases subject to certain conditions.
Exemption for specialized performers hired by a performing arts company or organization to teach a master class for no more than one week (a “master class” is a specialized course for limited duration that is not regularly offered by the hiring entity and is taught by an expert in a recognized field of artistic endeavor who does not work for the hiring entity to teach on a regular basis).
Fact sheet from Assemblywoman Gonzalez
Independent contractor versus employee (California Department of Industrial Relations)
AB 5 and AB 2257 (Californians for the Arts)
SB 805 – Independent contractors: small nonprofit performing arts organizations. (This bill would state the intent of the Legislature to enact legislation that would permit small nonprofit performing arts organizations to pay production artists as independent contractors under certain circumstances, while still providing workers’ compensation insurance and also not limiting any organization’s ability to hire workers under a union contract.)