Recently, members of the California Legislature worked until the early hours of the morning to approve a number of bills – one of which, AB 2257, encompasses AB5 exemptions – before adjourning. The same lawmaker who spearheaded the controversial 2019 law, Assemblywoman Lorena Gonzalez, introduced AB 2257. In its “Legislative Counsel’s Digest,” or introduction, the latter document specifies that it will “revise and recast” the independent contractor classification requirements for several types of professionals if signed by the governor.
To the benefit of California’s sizable music community, the Digest specifically notes that the bill would afford exemptions to “certain occupations in connection with creating, marketing, promoting, or distributing sound recordings or musical compositions.”
Additionally, the legislation would grant musicians and bands exemptions for a “single-engagement live performance event, unless certain conditions apply, and would define related terms.” And on the “individual performance artist” front, AB 2257 would enable artists to play “their original work…if certain conditions are satisfied.”
Digging into the sizable legal text itself for insight about the nuances of these “certain conditions,” AB 2257 would reinstitute the Borello multifactor employment test for virtually all members of the music industry; artists, songwriters, engineers, mixers, producers, and others are mentioned by title.
However, artists, studio musicians, and vocalists “who are not royalty-based participants” – or are not entitled to a share of the underlying work’s earnings – “shall be treated as employees solely for purposes of receiving minimum and overtime wages.”
Though AB 2257 would allow each artist and musical group in California to offer a “single-engagement live performance event,” the bill includes a few noteworthy exceptions. Artists who are headlining events with audiences in excess of 1,500 individuals, as well as artists who are performing a music festival “that sells more than 18,000 tickets per day” are not exempt from AB5 and its ABC test.
Also, the exemptions do not extend to those performing as part of a symphony orchestra, a musician’s work in a “musical theater production,” or gigs at amusement parks.
Aside from providing exemptions for musicians and music industry professionals, AB 2257 would relax AB5 restrictions for freelancers such as interpreters, tutors, youth-sports coaches, graphic designers, and pool cleaners, to name just some. A separate bill, AB 323, would afford newspaper companies a one-year exemption from AB5 requirements for delivery persons.
Both bills are awaiting Governor Newsom’s approval, and he is reportedly expected to sign AB 2257 into law sometime this month.