Lorena Gonzalez Announces Pending Changes to How AB 5 Applies to the Music Industry

SACRAMENTO – (Friday, April 17, 2020) – After more than a year of meetings, fact-findings and discussions with musicians and other artists in the music industry, California State Assemblywoman Lorena Gonzalez (D-San Diego) and Assembly Majority Leader Ian Calderon (D-Whittier) announced pending amendments to her landmark state law, Assembly Bill 5, that will balance the need to protect workers and preserve musicians’ ability to collaborate within the industry.

“For nearly a year and a half, I have engaged with individual musicians, the recording industry, and unions representing musicians and artists to understand how the California Supreme Court’s Dynamex ruling and AB 5 has impacted their work,” Assemblywoman Gonzalez said. “In partnership with Majority Leader Calderon, I’m pleased to say that representatives from across the music landscape have reached a consensus to move the industry forward when it comes to workplace rights. When the Legislature reconvenes, new amendments will acknowledge and add to 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.”

“I want to thank all parties involved for helping us reach this resolution for industry and workers,” Majority Leader Calderon said. “When it comes to protecting work and workers in California, we want to make sure we get it right. I’m glad I was able to have a part in making this happen.”

Assemblywoman Gonzalez introduced legislation in January to continue working on the issues affecting a variety of industries following the unanimous 2018 California Supreme Court’s Dynamex decision that established a three-part ABC test for determining employment status. When AB 5 passed last year, she acknowledged that the Legislature’s work was not done—particularly with respect to the complex challenges presented within the music industry—and remained committed to finding consensus that would urgently bring clarity to the employment rules affecting musicians throughout California.

Upon the Legislature’s reconvening from its recess, Assemblywoman Gonzalez will make changes to how AB 5 applies to professions in the music industry. Under the ABC test and the (pre-Dynamex) Borello test, employment status has always been determined based on whether a hiring business can impose a significant level of control and direction on the manner and means by which a worker accomplishes their task.

To remain consistent with this principle, the amendments will reflect greater opportunity for musicians to collaborate with each other in instances where the musician is free of significant control from the hiring business and the nature of their work is primarily original and inventive. Musicians that will be subject to the pre-Dynamex standard instead of the ABC test retain a greater ability to influence their working conditions, and possess more creative independence and professional autonomy over their work when collaborating with other artists to produce a song or put on a live performance. 

With respect to the music production process, the amendments will preserve the ability for the following industry professionals to collaborate and contract with one another to produce sound recordings and musical compositions without application of the ABC test to determine an employer: 

  • Musicians, vocalists, and other recording artists

  • Composers

  • Songwriters

  • Lyricists

  • Musical engineers

  • Sound mixers

  • Record producers 

  • Others involved in the creating, marketing, promoting or distributing of the sound recording or musical composition

With respect to standalone live performances, the amendments will also specify that unless a musical group specifically falls into one of groups below, the musicians will be subject to the less strict pre-Dynamex test to determine classification. This allows most independent musicians to collaborate with one another in their live performances, without becoming each other’s employees. 

  • The main featured act headlining at a concert venue with more than 1,500 attendees or;

  • Musical group performing at a large festival with more than 18,000 attendees per day.

Instances where the nature of a musician’s work inherently draws a significant level of control and direction from their employer, musicians will continue to have employment protections under AB 5. This includes the following arrangements:

  • A musical group regularly performing in a theme park setting,

  • A musician performing in a symphony orchestra,

  • A musician performing as part of a tour of live performances,

  • A musician performing in a musical theatre production. 

The amendments that add greater opportunity for collaboration in musicians’ work arrangements will be applied retroactively.

For questions or to schedule an interview with Assemblywoman Gonzalez, contact Sami Gallegos: samantha.gallegos@asm.ca.gov

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