Gig worker law will be amended for musicians, lawmaker says

Assemblywoman Lorena Gonzalez announced pending amendments to Assembly Bill 5 on Friday, allowing some music industry professionals to determine their employment classification without using the “ABC” test required under the controversial labor law.

The changes will be made when the Legislature reconvenes in May, according to the announcement made by Gonzalez, D-San Diego, and Assembly Majority Leader Ian Calderon, D-Whittier.

With the amendments, musicians, songwriters, producers, and other industry professionals will be able to collaborate and contract with each other to produce music without being subject to the ABC test, the three-pronged standard used under AB 5 to determine whether a worker qualifies as an independent contractor or an employee. The amendments will also allow musicians perform live in most circumstances without being subject to the ABC test.

These exempted professionals will rely instead on the Borello test to determine whether they qualify as an independent contractor. The Borello test was standard for determining employment classification in California until 2018, when the state Supreme Court ruled in Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018) that the ABC test should be used instead.

“We’ve built a strong economy based on Borello,” said Jordan Bromley, a partner at Manatt, Phelps & Phillips, LLP and a member of the Board of the Music Artists Coalition.

“In the recording setting, it doesn’t work,” Bromley said of AB 5.

He gave the example of an independent artist working with a guitarist to record an album in her bedroom. In that case, Bromley said, the artist would have qualified as an employer under the ABC test and would have been required to perform administrative duties for which she likely wouldn’t have the capacity.

“Not only would it stifle creativity, it would create a burden too heavy to lift,” Bromley said.

Bromley was part of a coalition of music industry professionals and organizations, including the Music Artists Coalition, Songwriters of North America and American Federation of Musicians, who worked with Gonzalez and Calderon on the amendments announced Friday.

Even with the amendments, some music industry professionals will not be exempted from AB 5, Friday’s announcement said. These include musical groups who perform regularly in theme parks, symphonies, and as part of tours or musical theatre productions.

“I think there’s certain situations that are much more of a classic employer employee situation,” said Kenneth D. Freundlich, founding partner of Freundlich Law and Chair of the California Advocacy Committee for the Music Managers Forum.

Still, he commended Friday’s pending amendments.

“I think this is just ... the foot under the tent,” Freundlich said. “There are many, many related entertainment industries that need similar relief.”

AB 5 took effect on Jan. 1.