State bills seek to exempt theaters from gig work law
Two bills introduced in the Legislature would give theaters various levels of exemption from AB5, the gig work law that makes it harder for companies to classify their workers as independent contractors instead of employees.
Assembly Member Marc Levine, DSan Rafael, introduced AB1227, to provide full exemption for workers in seasonal live theater, regardless of an organization’s budget size.
He is framing his bill, announced Wednesday, as a way to help theaters reopen as quickly as possible after the pandemic.
“We don’t want to strip away important protections in the workplace,” he told The Chronicle by phone. “I hope that we can return to live theater soon and safely. That requires that we plan for it but also in a way that provides flexibility to theater owners.”
Another proposal, SB805, introduced Feb. 19 by state Sen. Susan Rubio, DBaldwin Park (Los Angeles County), along with coauthor state Sen. Ben Allen, DSanta Monica, would exempt only “small performing arts organizations” and only under unspecified certain conditions, “while still providing workers’ compensation insurance and also not limiting any organization’s ability to hire workers under a union contract.”
In a statement to The Chronicle, Rubio called the arts “instrumental,” citing their role in her own childhood “as an atrisk, innercity youth growing up near Downtown L.A.”
“If not for this critical legislation, we risk the disappearance of the vital role they play in our society,” she said.
Both bills’ language is preliminary and will probably get more specific as the legislative process evolves.
AB1227 would instead apply an older standard, known as the Borello test, to theater workers. Even under Borello,
which considers many more factors than AB5’s threepart test, it’s not clear that the theater industry’s independent contractors are properly classified, given how much control a theater can exercise over how, when and where workers do their jobs.
AB5, which went into effect in 2020 as a codification of the 2018 California Supreme Court decision in Dynamex Operations West Inc. vs. Superior Court, was widely viewed as targeting technology companies such as Uber and Lyft. Many theater leaders thought it was unfair that AB5 should apply to them, given that many of them barely break even (they’re not denying their workers stockpiles of cash from investors), that the government gives paltry support to the arts compared with those in many other countries, and that the law’s language demonstrated little consideration of how the theater industry works.
Cleanup bill AB2257, passed in September, gave some exemptions to AB5, but it did not cover most theater artists. Uber, Lyft and other gig companies got their own exemption to the bill when voters approved Proposition 22 in November. The original text of AB5 grants some exemptions as well to professions such as doctors and dentists.
Oakland actor Kevin Singer, who’s a member of the union Actors’ Equity Association, got to know Levine through his day job with the communications firm Rally, which worked on Levine’s campaigns. He was among those in the theater community who offered suggestions for AB1227. Barring a huge infusion of arts funding, “the idea of asking really, really small organizations to adhere to a law that is stricter than the law for Uber and Lyft and major corporations for which this law was written just strikes me as unfair,” Singer said. “If these organizations were raking in the cash, and I felt like I wasn’t getting my fair share, that would be upsetting to me.”
At the same time, even arts workers at the top of their careers often get paid minimum wage or less, and the pandemic has only further exposed an already urgent need for more robust worker protections.
Spokespeople for the unions Actors’ Equity Association and Stage Directors and Choreographers Society did not immediately respond to The Chronicle’s requests for comment.
“How do we make sure that workers remain protected? It’s a balancing act, and the challenge for this issue has always been that (the arts) are systemically undercapitalized,” said Julie Baker, executive director of advocacy organization Californians for the Arts.
“We can’t do what AB5 is asking us to do,” she added, noting that given the gig structure of much work in the arts, independent contractor relationships often make sense. To that end, her partner organization, California Arts Advocates, has put its support behind SB805.
For many small theaters, AB5’s burdens are administrative as well as financial, said Jeanette Harrison, artistic director of San Rafael’s AlterTheater.
“We work with a set designer, a space designer, a visual designer who is a fine artist and has her own studio and is known for that, so we could pay her as a contractor. But a stage designer, we couldn’t? It was very confusing and complicated, creating a million and one rules for each individual person that we hired,” Harrison said.
Brad Erickson, executive director of nonprofit Theatre Bay Area, said he appreciates lawmakers keeping an eye on the arts, “looking at theater in particular, understanding we’re under real pressure right now, really hurting, and that reopening is going to be difficult and trying to find some way to help.”
He added that complying with AB5 is “almost impossible” for many theaters whose annual budgets are less than $1 million.
“The goal here,” Singer said, “is to protect the community organizations that enrich our lives and that don’t have the resources or have the business model for which the law is written.”