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13 Feb 2020

'It's a Shit Show': AB 5 Was Supposed to Make Things Better for 'Gig Economy' Workers—but It's Threatening the Livelihood of Independent Musicians

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Avenida Music's Josiah Gonzalez: “If they really crack down on this, it could really affect our gigs.” Avenida Music's Josiah Gonzalez: “If they really crack down on this, it could really affect our gigs.”

Much has been written about Assembly Bill 5 (AB 5), the legislation signed into law by Gov. Gavin Newsom last year that redefines how California companies can hire freelancers and contract workers—and much of that writing has focused on Lyft and Uber drivers, as well as freelance writers, who have been hit hard by the law.

But there's another, less-discussed group of people whose livelihoods are being threatened by AB 5: freelance musicians.

As the law is written, a musician hired for a one-off gig at a club or restaurant could be considered both an employee and an employer, if he or she put together a combo for the occasion. A musician hiring a producer once to help out on an album also would be considered an employer. And if musicians perform paid work at houses of worship on a regular basis, according to AB 5 as it stands now, a church or synagogue would have to make them employees.

While almost everyone agrees a “carve out” needs to be made in AB 5’s language to allow small and non-union musicians to make a living, that has not happened yet—and musicians and club owners are grappling not only with the bill’s prohibitions, but also its confusing language. Many professions are exempted, including “fine artists,” but the definition of “fine artist” isn’t clear legally.

In a recent interview with KQED-TV, Assemblywoman Lorena Gonzalez, the San Diego lawmaker who authored AB 5, said, “Obviously, a muralist is a fine artist. A musician is a fine artist.”

But Gonzalez’s words don’t translate into law.

“I think it will be very hard to find anyone complying with this law as it stands,” says Barry Martin, aka DJ Baz, a music promoter who stages the weekly Jazzville Palm Springs series at Wang’s in the Desert in Palm Springs. “And should any enforcement begin, thousands of musicians will lose their gigs across the state and not be booked again until an exemption for musicians is in place.”

Ari Herstand, a Southern California musician and author (How to Make It In the New Music Business) who has covered AB 5’s effects on his blog Ari’s Take (www.aristake.com), is more blunt.

“It’s a shit show with all the powerful organizations and unions,” Herstand wrote in January. “And while they are throwing their proverbial dicks around breaking out their rulers, thousands of independent, working musicians are suffering. We do not have time to wait for them to agree on where the commas should be placed (in carve-out language).”

Herstand began a petition on change.org urging the Legislature to enact an exemption for musicians. As of this writing, it has nearly 168,000 signatures

“If (AB 5) stands,” he says, “I figure I’ll lose about $6,000 a year. I’d have to carry workers’ comp insurance (and) have to enlist a payroll company, and file payroll taxes per employee—I may contract 50 people during the year. And I would be considered both an employer and an employee at the exact same gig.”

Josiah Gonzalez is one of the members of popular Coachella Valley band Avenida Music, which plays at parties, weddings and other events. He plays keyboards and does most of the band’s booking and management. The band has been speaking out about the dangers of AB 5 on its social-media accounts.

Gonzalez said that right now, a lot of people don’t know about the language in AB 5. For example, Avenida plays regularly at casinos, which, Gonzalez says, “don’t have dedicated music people. You get hired by a food-and-bev person or assistant manager.”

The more word spreads about AB 5, the worse things will get—until the Legislature fixes the mess it created.

“Beyond the financial, legal and administrative mess created by AB 5, communities face even more profound threats from the new law,” wrote Brendan Rawson, the executive director of San Jose Jazz, in a commentary for the CalMatters. “Segments of our cultural and civic life are at risk of going out of existence.”

Rawson wrote: “AB 5 unnecessarily complicates other work arrangements found in community cultural programming such as small festivals, neighborhood street fairs, parades and summer music series in our local parks.”

Indeed, non-Equity theaters and dance companies are grappling with the implications of AB 5. Island City Opera in Alameda has canceled its planned March performance of the opera The Wreckers over concerns with paying temporary musicians, and Herstand says he knows of a production of West Side Story where the singers now will perform to recordings rather than the live music that was planned, putting more than a dozen musicians out of a gig.

For what it’s worth, Tamara Stevens, executive administrator of the Palm Springs Hospitality Association (PSHA), wrote in an email: “PSHA has not taken a position on AB 5.”

Herstand was part of a coalition that met with Assemblywoman Gonzalez to explain the musicians’ dilemma. While he initially wrote on his blog that he was encouraged by the December meeting, when the Independent spoke to him for this story in February, he expressed concern.

“I think Assemblywoman Gonzalez is pretty much dogmatic about her position; she doesn’t seem willing to budge on this,” he says.

Several members of the Legislature have crafted new carve-out bills for a variety of professions, including for freelance writers, sign-language interpreters, and newspaper-delivery drivers. SB 881, authored by state Sen. Brian Jones, for instance, would exempt musicians and make many other tweaks to the law.

But Herstand says that the makeup of that particular bill’s sponsors—Jones and nine other signatories all are Republicans—may doom its prospects.

“A bill in a Democratic state like California needs Democratic backers,” Herstand says, “and Democrats will not buck the unions behind this.”

Meanwhile, Assemblywoman Gonzalez is touting upcoming carve-outs for freelance writers, but said in a Feb. 6 tweet that musicians still will have to wait a bit. “We are still pushing hard on industry and worker representatives to reach agreement on language regarding musicians,” she tweeted. “We plan to address the unique situation regarding musicians in the next round of amendments by March. We are working hard on musicians issues!”

While politicians tussle and posture over AB 5, it’s independent musicians like Josiah Gonzalez and the members of Avenida Music who suffer.

“Most of the bands are just oblivious to (AB 5),” he says, “but if they really crack down on this, it could really affect our gigs.”

Kevin Allman is a California-based journalist. Follow him on Twitter at @kevinallman.

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