California loves the arts. But its new gig law could decimate theater

by Lily Janiak and Carolyn Said, San Francisco Chronicle

In 2014, Becky Davis was fresh out of the Coast Guard and worked up the nerve to audition for a play. She set her sights on “Barefoot in the Park” at the Altarena Playhouse, a community theater in Alameda.

She found a source of “joy and vibrance,” and even wound up getting cast opposite the man she would later marry.

But now, joy has turned to fear. Already reeling from catastrophic revenue losses due to the pandemic, theaters will face a drastic increase in expenses — at least 30 percent of annual budgets, according to many estimates — when they reopen, as they must turn actors, stagehands, technicians, costume makers and musicians into employees to comply with California’s new gig-work law, AB5.

Many local artists are “absolutely panicked about what that means for their theaters,” said Davis, who is now board president at the Altarena.

California’s rich landscape of hundreds of tiny, innovative companies could dwindle to a handful of large, well-financed institutions by next year, arts professionals fear, leaving theatergoers with a paucity of choices, most of them pricey.

Hundreds of theater professionals now are joining forces to seek a way forward, lobbying legislators to give them a phase-in period, exempt the smallest companies, provide funding to help with the transition and provide clear guidelines on how they’re supposed to comply with the law.

Julie Baker, executive director of advocacy group Californians for the Arts, has helped lead that charge. “How we (comply with AB5) and keep arts accessible is the bottom-line question,” she said.

Davis wrote a letter to the lawmakers behind AB5 in February, cosigned by two dozen small arts companies, asking to discuss the law’s implementation. She still hasn’t heard back.

While many in the industry value the law’s goal of protecting workers, small companies — which serve as creative labs where art leaps in new directions — say they face dire choices under the law. They can switch to an all-volunteer model, eliminating the small stipends previously paid; go out of business; or ask audiences to pay top dollar for formerly affordable performances.

“It will cut theater to only allowing the elite and those that have deep pockets and money to be able to afford to be in this game,” said Sherri Young, founder and executive director of African-American Shakespeare Company in San Francisco. “That would be the real tragedy of all this — that AB5 wipes out the ingenuity and creativity of an entire industry.”

Still, some arts unions say that without the safeguards of employment, workers are vulnerable.

“Theaters can be potentially hazardous places,” said Joanne Desmond, assistant business agent of Local 16 of the International Alliance of Theatrical Stage Employees, which represents backstage technicians. “You work in the dark a lot, on ladders. My concern is the well-being of not only the performers but the crew backstage.”

Actor Francis Jue says that being employed as a member of Actors’ Equity Association, the national union that represents actors and stage managers in live theater, meant that when he broke his back from a 15-foot fall in a production of “A Midsummer Night’s Dream” 12 years ago, he didn’t have to pay for his treatment himself.

Employee protections make him a better artist, he said.

“I can go to the director and ask a question and know that I can’t simply be fired because I’m annoying,” he said. “It does provide a framework in which I think I’ve been able to work more freely and collaborate more.”

Community theaters and others in the arts are clear that they don’t want to exploit artists.

“The arts are mission driven, not money driven,” said Margaret Jenkins, founder and artistic director of Margaret Jenkins Dance Company in San Francisco. “Nobody I know is... taking extra money and going to the Bahamas. They’re just trying to pay for food on the table ... and for the next rehearsal space.”

Deborah Slater of Deborah Slater Dance Theater in San Francisco typically charges patrons a sliding scale from free to $50. Hiking prices to $100 a ticket, as she envisions having to do, “would definitely change the demographics of the audience,” Slater said. “It would undercut the whole idea of making a work for an audience if your audience can’t come.”

Small theaters serve as the first rung on the career ladder for many artists just starting out. They’re a place to build craft, network and get noticed.

Ariel Craft, who’s now the artistic director at Cutting Ball Theater, got her start in San Francisco creating theater company the Breadbox while she was still a student. For her first show, in 2012, she paid actors a $200 stipend for an entire production, including rehearsals and performances. By the company’s last show, in 2017, she paid $500, which drew a different tier of talent.

Limiting options to volunteers or the all-employee model offers no path for new theaters to grow into midsize ones, she said: “Had AB5 been there earlier in the trajectory, they may never have matured into the theaters they are now.”

Marginalized communities in particular depend on scrappy, emerging theater companies.

“Small theaters are the way for BIPOC artists to get their work seen and break into the industry,” said Martha Demson, artistic director of OpenFist Theatre Company in Los Angeles, using the acronym for Black, indigenous and people of color. “Sure, if you can afford to just be a volunteer, fine. But on-ramping opportunities will now go away and won’t even have stipends attached to them, which helped a lot of young emerging artists.”

“It is healthy for our whole ecosystem,” said Wayne Hazzard, executive director of San Francisco’s Dancers’ Group. “We need those small burgeoning new entities that … might become the next Lines Ballet or Nā Lei Hulu I Ka Wēkiu.”

AB5 makes it harder for hiring entities to claim that workers are independent contractors, the arrangement used in many live productions. It says workers should be employees unless they’re free from a hiring entity’s control; doing work not central to that entity’s business; and have independent businesses in that line of work.

In theater and dance, where workers must show up at certain times and perform duties that are part of an arts organization’s mission, the vast majority of workers would likely be classified as employees under AB5.

AB5 author Assemblymember Lorena Gonzalez, D-San Diego, addressed that issue in a webinar this month sponsored by Californians for the Arts.

“When you exercise that much control and direction over an individual, you become an employer,” she said.

A clean-up bill passed this summer, AB 2257, added exemptions for single-engagement performances in comedy, improv, magic, mime, spoken-word, storytelling and puppetry. It also exempted musicians in many circumstances — but notably not when they perform with a theater or symphony orchestra.

Jeanette Harrison, artistic director of AlterTheater Ensemble in San Rafael, said legal experts give conflicting advice about how to classify playwrights, designers and directors; who will own those artists’ intellectual property; and how that changes based on how a play is created.

Getting an exemption from AB5 simply means that a profession is subject to the older standard called Borello. Many theaters cannot pass that test either, because they exert too much control over their workers.

In fact, even before AB5, some local theaters such as Berkeley’s Shotgun Players and African-American Shakespeare Company were audited by the state and required to reclassify their actors as employees. Now, with AB5, they worry that people handling sets, sound, lighting, costumes, props and more would be subject to becoming employees as well.

Some professionals might be exempt from an employment because they are truly independent. Lighting designers, choreographers and set designers who work for multiple companies, signing contracts to perform specified tasks, but in control of how they do it, potentially would be seen as sole proprietorships.

Gonzalez proffered some possible lifelines at the webinar, such as a statewide system to handle payroll and workers’ compensation to spread out overhead costs. She also said she’ll work to increase funding.

Theater and dance collectives, in which all decision-making is shared and no one entity has control, potentially could be exempted, Gonzalez said.

Hazzard said the collective model might apply to many more organizations. “In administrative and production and rehearsals and teaching, it is a collective structure, yet we’ve filtered it all through a corporate nomenclature,” he said.

Jeremy Erman of Mountain View works as a musician, teacher, writer and actor with two part-time employee jobs for schools and the rest as gigs, often just for stipends.

“If you cobble together lots of little bits of work, it starts to add up,” he said. “It’s really sad to think that people can’t say, ‘Hey, let’s go put on a show and we’ll pay you a little something.’”

Early this year before the pandemic closed live performances, he experienced the new normal under AB5 at a dinner theater production that converted him and others into employees, but then drastically curbed their hours to stay within budget.

“We had to overhaul every single aspect of how our shows were put on — everything from rehearsal time to performance time, and how many people were in the show,” he said. “The skits were rewritten. It took a lot of the fun out of it. We had to keep our eyes on the clock because our producer could not afford to pay us overtime.”

Lily Janiak and Carolyn Said are San Francisco Chronicle staff writers. Email: ljaniak@sfchronicle.com csaid@sfchronicle.com Twitter: @LilyJaniak @csaid