AB5 Updates
January 6, 2020 update
January 6, 2020 Corrections bill AB 1850 introduced by Assemblymember Lorena Gonzalez. California Arts Advocates continues to work with the author’s office, several other legislators and some unions to see if we can agree on any additional exemptions or clarifications for at least short term engagements (1x gigs etc) and workers providing limited engagement services to small budget tax exempt organizations. (Under 250k).
If you are reducing or ceasing programs due to the impact of AB5, please let us know. Please tell us the specifics including how many people will not be hired due to these cuts and how many people will not be served. In addition, please state the communities to which you deliver these programs.All of this points to the need for continued and increased investment and public funding for the arts. Please join us in our advocacy efforts by signing up for our newsletter and joining us on Advocacy day on April 15, 2020 in Sacramento.
December 20, 2019
AB5 Resources
We’ve held several workshops across the state regarding AB5. San Francisco, Los Angeles, San Jose, Orange County, two in San Diego, and on December 3rd, we offered a free webinar for over 300 participants. More workshops and a follow up webinar will be announced for 2020. At these workshops, we team with employment lawyers to educate the field about the bill, how we got to AB5 (Borello, Dynamex decisions) compliance with the law and what it means if you fit into an exemption category and the risks of non-compliance.
Check our events calendar for upcoming AB5 Workshops.
Human Resources
Society for Human Resource Management
Gusto – Cloud-based HR and Payroll
ADP – Payroll and HR services
Employment Resources
Labor & Workforce Development Agency AB5 FAQ
State of California, Department Of Industrial Relations
Employment Lawyers
Los Angeles: Jackson Lewis: Adam.Siegel@jacksonlewis.com
Orange County: Manatt, Michael E. Olsen: MOlsen@manatt.com
Sacramento: Stoel Rives, Vida L. Thomas, vida.thomas@stoel.com
Sacramento: Bryan Hawkins: bryan.hawkins@stoel.com
San Diego: Brown Law Group, Arlene Yang: Yang@brownlawgroup.com
California Lawyers for the Arts, referral service: https://www.calawyersforthearts.org/
Ongoing Advocacy & Lobbying Efforts
Survey: Data tool for building the narrative
Results from Survey as of December 20, 2019
Q: How many private contractors to you hire annually on average?
Of the Employers
• 89% nonprofit orgs
• 55% hire more than 20 Independent Contractors in a year
• 80% AB5 will affect ability to offer programs
• 57% will have to close business or cease to offer certain programs
• About 45% receive funding from California Arts Council
Q: Are you an employee, IC or both?
Of the Workers
• 61% are Independent Contractors (IC),
• 32% are both Employees and ICs
Q: How many contracts do you have annually?
Independent Contractors
• 27% 20+ contracts in a year
• 42% 1-5 in a year, rest in between;
• 95% feel AB5 will result in less work
Fine Artists Exemption: What does it mean?
Due to the lobbying efforts of California Arts Advocates “Fine Artists” received a professional exemption from AB5. As "Fine artists" has been left undefined in the bill, it is subject to interpretation. On December 10, California Arts Advocates Executive Director Julie Baker and CAA’s lobbyist met with the author’s office. They confirmed it was left undefined on purpose. What we know is the traditional reading of “Fine Artists” is visual and craft artists but if you have an MFA in Theatre, are you also a “Fine Artist”?
News from Assemblymember Lorena Gonzalez, author of AB5
And tweets such as this one from December 11, 2019.
Gonzalez has stated on several occasions that "Fine Artists” may cover more than just visual artists, “Obviously, a muralist is a fine artist,” she says. “A musician is a fine artist.” And “I think as our world changes, the definition of a fine artist changes,” she says. “This is going to be an ongoing discussion.”
What Else We Know
a) Fine Artists is a professional service exemption and therefore you have to meet these criteria to be exempt from AB5: if the hiring entity can demonstrate that the professional:
(1) Maintains a business location separate from the hiring entity;
(2) Has a business license and any required professional licenses or permits;
(3) Has the ability to set or negotiate their own rates;
(4) Has the ability to set their own hours;
(5) Customarily engages in the same type of work performed under the contract;
(6) Holds themselves out to other potential customers for the same type of work;
(7) Exercises discretion and independent judgment. If you meet these criteria as a “Fine
Artist” you are exempt and therefore governed under the Borello decision (an 11 point test) to determine if the worker should be classified as an independent contractor.
b) The term “Fine Artists” is not defined in the legislation and thereby subject to interpretation. We suggest without giving any legal advice, that you interpret it to the best of your abilities.
c) There will be a corrections bill in 2020, and there are possible additional exemptions on the table for the arts industries. California Arts Advocates is in contact with the author’s office as well as other legislators to work on additional exemption language
To that end, we continue to refine proposed exemption language for a corrections bill or definitions in a clean up bill for 2020 and are working directly with several Unions for workers in service to the arts on how best to support artists and provide direction and resources for the field to thrive.
At the same time, we are also encouraging the field to look at our business models and what are some longer term solutions to get to a place where all workers in service to the creative industries receive fair pay and benefits. We realize this is not a quick fix as the models are so ingrained and have for the most part, worked to keep the arts going in our communities. This is also a topic we will explore in more detail at our arts impact summit in April surrounding Arts Advocacy Day on April 15.
We think this all speaks to why we also need to increase funding for the arts! Artists and non-profits provide much needed services in communities across California, some that are no longer offered in schools and others that enrich our lives, provide economic benefits to rural and urban communities, teach empathy and help to unite us when we share and celebrate our diverse cultures. Join us at Advocacy Day to share your stories on why the arts need continued and increased public funding in California!
Sample AB5 Template Letter
Find your elected official here
Dear (send to your elected officials for your district),
I am writing today to share with you the anticipated impact of Assembly Bill 5 on my __________ (livelihood or name of organization or ability to find work in CA etc.)
Share your specific story here:
Keep it short and as much as possible include specific data and the consequences.
.
.
.
I respectfully request that when the legislature reconvenes in January a corrections bill is developed to include additional exemptions or clarifications for the arts and creative sector. I know California Arts Advocates is working on this issue and I support their efforts.
Additionally, as AB5 changes the way the arts do business and increases staffing costs up to 40% for some organizations, I also request that the legislature increase public funding for the arts. The data shows that California is leading the nation in creative economy output but still falls behind in terms of public investment in the arts. Even with the $10 million increase in 2019 to the California Arts Council, California is still investing less than a dollar – in fact .71 cents per capita per person (without one time funds) – and ranks 26th in the nation for arts funding. As the creative economy represents 7.1% of California’s GSP ahead of agriculture and transportation, an investment in public funding for the arts makes good business sense.
Increasing public funding is also an equity and access issue. According to a James Irvine Foundation study in 2011, there are over 11,000 arts non-profit organizations in California delivering much needed creative and cultural programs to our state of 40 million people. Most of these organizations operate on small budgets with tight margins but do the work because they know the difference the arts bring to our lives and our communities. However, in grants awarded by June of 2019, the California Arts Council was able to fund only 12% of the total organizations in California. Without additional funding communities across California will continue to be deprived of access to the arts.
Thank you for listening.
Respectfully,
Your name and address