<\/p>\n\n\n\n
Much Ado About AB5<\/span><\/strong> Several of the attorneys here at Baker, Keener & Nahra are musicians in addition to being trial lawyers, so AB5\u2019s effect on musicians is something that we are not only keenly aware of but affects us personally. So, for our fellow musicians, this post is intended to not just highlight the problem, but provide some possible solutions going forward (assuming that we are not granted an exemption which, fingers crossed, hopefully we will be).<\/p>\n\n\n\n (One caveat before getting started – as AB5 is a brand new law that has yet to be tested in the court system, unfortunately no one knows for sure what will and won’t work or it’s actual impact on the gig economy. So at this early juncture, all we can offer is the start of the conversation about some potential solutions that could work).<\/p>\n\n\n\n AB5 and the Gigging Musician<\/span><\/strong> Post-AB5, however, not so much. The reason is two-fold. First, under AB5, if a musician is under \u201cthe control and direction of the hiring entity in connection with the performance of the work,\u201d then he is an employee of the hiring entity, not an independent contractor. And second, if the musician performs work that is in the \u201cusual course of the hiring entity\u2019s business,\u201d she is also an employee, not an independent contractor. So let\u2019s take a look at the gig situation post-AB5.<\/p>\n\n\n\n The problem is that, as the band leader, you are the \u201chiring entity\u201d when you call up your friends and offer to pay them in exchange for playing the gig, which means they are now your employees because you (1) \u201ccontrol and direct[]\u201d how the gig goes (e.g., what songs to play, when to take breaks, etc.) and (2) you are in the music business, the same as your friends.<\/p>\n\n\n\n And if they\u2019re your employees, that means you have to provide them with all of the many things that an employer is required to provide \u2013 worker\u2019s compensation, meal and rest breaks, overtime, and the list goes on. Obviously, no musician wants to do all of that just to get a group together for a dinner gig paying everyone $75-100 for a few hours of work. <\/p>\n\n\n\n It’s All About the Hiring Entity<\/span><\/strong> That means that if the restaurant also hires your friends, rather than you hiring your friends to play a dinner set, then you should be in the clear (emphasis on \u201cshould\u201d because AB5 will be a new, untested law, so, unfortunately, there are no guarantees as to what will or won\u2019t work and it will likely be situation-specific).<\/p>\n\n\n\n In other words, rather than hire musicians directly, try to do so indirectly through an intermediary \u2013 whether that is through the client (e.g., the restaurant) or through a booking agency This lets you change the \u201chiring entity\u201d from you, the lead musician, to a third-party who will have nothing to do with controlling the performance. Contracted to play at a wedding? Have the bride and groom hire all of the band and not just you. Want to get together some musicians to record your demo? Find a talent agency to hire the musicians for you. Essentially, try and put a (legitimate) middleman between yourself and the other musicians.<\/p>\n\n\n\n Musician Looking for Work, Not Employment<\/strong><\/span> For example, let\u2019s say I want to hire you, Jane Smith, to play guitar in my band. I\u2019m a musician, so if I hire you directly then you are now my employee, so now I decide not to hire you because it\u2019s too much trouble. But if you have your own company, Jane Smith\u2019s Music LLC, then I can hire Jane Smith\u2019s Music LLC to provide a guitar player and Jane Smith\u2019s Music can then provide you.<\/p>\n\n\n\n Bring on the Paperwork<\/span><\/strong> TLDR<\/span><\/strong>: AB5 may significantly impact the way independent musicians hire each other but creative options may exist to reduce this impact \u2013 provided musicians are willing to jump through more hoops than usual in setting up gigs and create the paperwork to prove the hoops were jumped through.<\/p>\n\n\n\n Last Updated November 14, 2019<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" Much Ado About AB5There have been many articles about the recently passed AB5 in California, which will dramatically limit who can be an independent contractor, rather than an employee, in California. Due to being a heavy-handed, overbroad attempt to \u201cprotect\u201d all independent contractors in California, rather than the more nuanced approach that the courts had […]<\/p>\n","protected":false},"author":1,"featured_media":1312,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[3],"tags":[],"_links":{"self":[{"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/posts\/914"}],"collection":[{"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=914"}],"version-history":[{"count":11,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/posts\/914\/revisions"}],"predecessor-version":[{"id":1001,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/posts\/914\/revisions\/1001"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/media\/1312"}],"wp:attachment":[{"href":"https:\/\/bknlawyers.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=914"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=914"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=914"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
There have been many articles about the recently passed AB5 in California, which will dramatically limit who can be an independent contractor, rather than an employee, in California. Due to being a heavy-handed, overbroad attempt to \u201cprotect\u201d all independent contractors in California, rather than the more nuanced approach that the courts had been attempting to craft since the Dynamex<\/em> decision, it is becoming increasingly apparent that, rather than protect independent contractors, AB5 will instead make many of their lives much more difficult \u2013 including musicians.<\/p>\n\n\n\n
Consider this familiar situation: You get a call from a local restaurant asking if you can get a group together to provide background music on Saturday night. So you call around to your musician friends to see who is free, get a group together, and tell them what time the gig is and the pay for the night. Then you all play the gig and at the end of the night, you pay them, divide up the tips, and everyone loads out and goes their separate ways. Pretty standard so far, right?<\/p>\n\n\n\n
So what\u2019s a gigging musician to do? Let\u2019s go back to the example above. In that example, importantly the restaurant hiring you doesn\u2019t make you an employee because (1) other than perhaps telling you the type of music it wants (or to play more quietly), the restaurant is not going to control or direct how you perform and (2) the restaurant is in the food business, not the music business.<\/p>\n\n\n\n
What about if you\u2019re an independent musician looking to be hired? The same idea applies, but the twist is that because you are trying to be hired (rather than doing the hiring) you can help out by having a middleman to legally separate you from the person wanting to hire you.<\/p>\n\n\n\n
The bottom line is that although AB5 may not necessarily eliminate an independent musician\u2019s ability to hire other musicians, or to be hired as a musician, it will nonetheless require adjustments.\u00a0 The biggest adjustment, in addition to finding creative ways to avoid being the \u201chiring entity,\u201d will be the need to formally document the arrangement to prove that you are not the \u201chiring entity\u201d \u2013 e.g., that the restaurant hired all of the musicians and not just you. It is this latter part that some musicians may struggle with, but is likely to be a necessary step in responding to AB 5.<\/p>\n\n\n\n