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California ‘Gig Economy’ Bill 5 to be Amended, Some Categories of Exemptions for Musicians to be Adopted

An agreement has been reached in the California Assembly on pending amendments to California’s “Gig Economy” Assembly Bill 5 (AB5) that will provide relief to the majority of affected music professionals, including musicians, recording artists, composers, songwriters, and vocalists. According to a statement from the office of Assemblywoman Lorena Gonzalez, sponsor of the original bill, once the legislature reconvenes from its recess, Gonzalez will make changes to how AB5 applies to professions in the music industry.

Assembly Bill 5 is largely aimed at “gig economy” jobs and is designed to make it more difficult for companies to classify workers as independent contractors rather than employees. The law established a three-part (ABC) test for determining employment status, which music industry unions opposed because of its effect on industry professionals. Gonzalez introduced legislation in January to seek to rectify the issues raised.

Under the ABC test and the 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,” according to Gonzalez’s office.

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

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 AB5. This includes a musical group regularly performing in a theme park setting, and musicians performing in a symphony orchestra, as part of a tour of live performances, in a musical theatre production, in major venues, and at major music festivals.

The new language has been agreed upon by the Recording Industry Association of America (RIAA), American Association of Independent Music (A2IM), Music Artists Coalition (MAC), Society of Composers & Lyricists (SCL), Independent Music Professionals United (IMPU), Songwriters of North America (SONA), American Federation of Musicians (AFM), the Recording Academy, International Allegiance of Theatrical Stage Employees (IATSE), Screen Actors Guild (SAG-AFTRA) and Teamsters.