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Musicians say AB5 strikes sour note with gig-driven profession

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Most musicians make their livings through gigs — a word coined by jazz musicians in the 1920s to describe their freelance engagements.

Now that California is clamping down on gig work through AB5, the new law that took effect Jan. 1, musicians have assembled to say that it could have “a devastating and catastrophic impact” on them, in the words of a petition signed by more than 180,000.

“We are the originators of the gig economy,” said Jordan Bromley, a music industry lawyer who is a board member of the new Music Artists Coalition, backed by industry figures Dave Matthews, Don Henley, Anderson .Paak, Maren Morris, Meghan Trainor, Shane McAnally and others. The group has joined with the Recording Industry Association of America, American Association of Independent Music, the Recording Academy, Independent Music Professionals United and others to negotiate with labor on a way to make AB5 work for the industry.

“We’ve built an industry based on everyone figuring out a way to work independently and entrepreneurially,” Bromley said. “AB5 attempts to define the roles of employer versus employees where frankly sometimes it’s impossible.”

California is the acknowledged center of music creation. With the industry still recovering from digital disruption, many fear that business could migrate to Nashville or New York if the climate here becomes too inhospitable.

“This law could single-handedly end the music industry in California,” Ari Herstand, a singer-songwriter and organizer of Independent Music Professionals United, wrote in a viral blog post.

“Our whole industry is in a panic right now,” Herstand said in an interview. “I don’t know any independent musician who can afford the additional costs” of hiring others as employees. “Not to mention that if I become an employee for the gigs I play at music venues, I can no longer itemize my expenses under the Trump tax code. I had $50,000 in business expenses last year — equipment purchases and rentals, software and hardware, recording studio rentals, travel to/from gigs, lodging.”

Maurice Tani of Berkeley, who makes his living as a bandleader, singer, songwriter and instrumentalist: “I have serious concerns regarding how AB5 is going to affect my ability to hire individual musicians on a one-off basis, as well as my own ability to be hired by venues.”

Behind the scenes, intense negotiations are occurring among music unions, major labels, indie labels and consortiums representing artists both famous and obscure. The parties say they are within days of hammering out language to clarify musicians’ treatment under the new law — and hope to maintain much of the status quo. AB5 author Lorena Gonzalez, D-San Diego, hopes to include that language in a cleanup bill in March once a consensus is reached.

AB5 sets stricter standards for claiming that someone is an independent contractor rather than an employee. The problem, musicians say, is that their work is so fluid that they continually switch roles, working as performers by themselves or backing up others, doing live gigs and recording sessions, teaching, producing, composing and booking acts, for instance.

“Musicians rely on a wide variety of income sources,” said Berkeley’s Maurice Tani, who makes his living as a bandleader, singer, songwriter and instrumentalist. “I have serious concerns regarding how AB5 is going to affect my ability to hire individual musicians on a one-off basis, as well as my own ability to be hired by venues.”

Each gig requires a different arrangement, he said. He might contribute to a recording session in a studio, headline a live performance at a club, or play in a band at a corporate party. He might organize other musicians to join him or he might play in someone else’s group.

“If I pay someone $180 for two gigs and have to make them an employee and go through all the paperwork and bookkeeping involved, the whole thing becomes immediately untenable,” he said. “These people don’t work for me; I split the money with them.”

John Acosta, president of Local 47 of the American Federation of Musicians, which represents 7,000 musicians in Southern Cailfornia, says he sympathizes with musicians’ pain over the issue — but also thinks that many could benefit from the protections and benefits of being employees, such as workers’ compensation and unemployment coverage.

Even among his members, only a minority have full-time salaried music jobs, while most piece together part-time music jobs, freelance gigs, teaching and other day jobs.

Music insiders and press reports say that the federation of musicians blocked the industry from getting an exemption when AB5 was written, but Acosta, who’s heavily involved in the ongoing negotiations, says he wants to take everyone’s concerns into account and reach a compromise.

“Our ultimate goal is to ensure a healthy ecosystem for musicians throughout the state whether they’re in the union or not,” he said. “We’re trying to make sure we can maintain whatever improvement AB5 gives our industry while addressing concerns that are legitimate.”

For instance, two musicians who collaborate on a recording or a band performance should not have to form an employment relationship, he said. Nor should a garage band or struggling indie artists.

Where he thinks the law should require musicians to be classified as employees is in orchestras and theaters, as well as in some clubs and established labels. He wants to end exploitative practices like “pay to play,” where clubs require musicians to sell a certain number of tickets to land a gig. And for steady engagements at the same venue, “maybe there’s an argument to be made that (the venue is) an employer,” he said.

But many small theaters say they operate on a shoestring and simply can’t afford the increased costs of turning freelancers into employees. Small theater and opera companies in the Bay Area and Los Angeles already have had to cancel or postpone productions as they grapple with AB5. Gonzalez proposed $20 million in the 2020-21 state budget to help nonprofit arts organizations comply, but it’s unknown if that funding will be approved.

Some musicians who have already become employees fear that they could lose business.

Jeff Sherman of Petaluma has played the bass in a 10-piece dance band for 25 years. “The bandleader actually made us all employees to comply with AB5,” Sherman said. “He has had to raise the price of hiring our band by $650 a gig to cover payroll costs, payroll taxes, workers comp, etc. We have a few gigs that were booked prior to Jan. 1, but I anticipate our workload will decrease dramatically due to the increase of price.”

For many musicians, making sure that hiring entities are confident that they won’t be at risk is paramount.

“It’s largely so employers don’t get cold feet,” said Tad Piecka who plays guitar in the Los Angeles RAQIA Acoustic Trio. “If they’re concerned about the possibility (of being found in violation of AB5), they may just not hire anybody.”

Carolyn Said is a San Francisco Chronicle staff writer. Email: csaid@sfchronicle.com Twitter: @csaid



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Workers

Denver’s Gig Economy Workers Share Their Stories

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Photo by Victor Xok on Unsplash

Caught between the new coronavirus and earning a living, the Mile High City’s independent workforce opens up about how Lyft, Amazon, Instacart, and others are supporting them (or not) during the COVID-19 pandemic.

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In many ways, gig economy workers have become the unsung heroes of the COVID-19 crisis, often facing frontline exposure to the virus without the protections—including health and unemployment benefits—provided to traditional employees. Some companies have made efforts to support workers during this time, such as offering two weeks of sick pay for those diagnosed with the novel coronavirus. But even workers ordered to stay at home by local governments have experienced challenges getting the companies approve their claims.

Last week, which began with Instacart and Amazon employees and contractors striking for higher pay and better safety measures, several Denver gig workers talked with 5280 about their experiences during the novel coronavirus pandemic.

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*Full names withheld at the request of the subjects. 

Nate*: Instacart

People are desperate, but that’s good though. Customers, they feel so bad for us, so a lot of the time they’re tipping us like crazy high. I could work seven days a week nonstop and make a ton of money, but I don’t want to do that because there’s a chance that I could be infected at anytime. Amazon and Whole Foods, their workers are going on strike because they don’t feel safe in these conditions.

The thing is, the last time people tried to strike against Instacart, it backfired on us. We used to have this quality bonus—every time a customer gave you five stars you got an extra $3 on your order. So it was a big incentive for us to give really good service. But when that strike happened, they completely removed it. They said they were going to implement new ways for incentivizing us with promotions, but that didn’t happen until—honestly until the coronavirus started to come into effect. Promotions are like, if you work from noon to 5 p.m., every delivery you do in that span you get an extra $3 per delivery. They don’t care. It’s that simple. They know they can exploit us and there’s nothing we can do about it.

Sherrie Salazar: Lyft, Instacart, Postmates

I have always done the express rental program through Lyft and Hertz, but the rental is $250 a week, and I haven’t been making that the last two weeks. Ridership is down. Grocery shopping and food deliveries are through the roof, which is what’s saving us gig workers right now. I just started with Instacart and Postmates during the pandemic. Postmates isn’t a big tipper. Instacart is. My Postmates stuff has all been food delivery; I think maybe customers think they’re paying too much for their food so they’re not going to tip the driver. It’s like, we’re out here making sure you get it. And it’s still warm—or cold, or whatever it’s supposed to be.

I’m a high-risk [patient] if I were to get COVID-19. My heart functions at 74 percent. I have asthma. I have kidney disease. I’m pre-diabetic. I’m still doing my job. I’m being safe about it.

JL*: Lyft

I’m pretty sure I had or still have COVID-19, and I self-isolated the moment I started having symptoms. My children have had it as well. I immediately contacted Lyft to let them know that I would be returning my rental and isolating. I then contacted them to see what relief would be available to me. They indicated that without a positive test result, I get no help. But no one can get tested in Colorado unless they are admitted to the hospital or meet the criteria for high risk. I contacted my primary care physician, and they indicated they would not issue a request for a test because I do not meet the criteria.

I’m convinced Lyft knows that not many people can get tested so they made that a requirement for helping drivers, thus limiting their need to help drivers. This is a crock of shit. I have been driving full-time for Lyft for a year with over 3,900 rides. I would estimate Lyft has made in excess of $40,000 from me. Still, they can’t help me even though I did the right thing and stopped driving. 

Steve*: Amazon Flex

Amazon has said it’s hiring 100,000 workers both in warehouses and as flex drivers. I guess my perception is that they’re trying to bring in a lot of new drivers to increase the pool of people who are picking from available slots so Amazon can avoid surge pricing. My personal opinion is everything Amazon is going to do is going to be in its favor—which is going to decrease the amount it has to pay to do deliveries.

I can certainly understand why people are [striking]: It’s the low pay. It’s all these packages that are coming in from all different locations and you just don’t know if the virus is on any of them. How long can it survive on cardboard packages? With this coronavirus, I’m hoping it does compel some of these companies that are providing gig work to provide better [personal protective equipment]—not only for the drivers’ protection but also for the customers’ protection as well

Stephanie Ramsey: Uber, Lyft, Instacart

I’m not someone who has a savings account that I can fall back on. I’m grateful that I at least have something, because if I didn’t have [Instacart] I would be in a bad position. But yeah, I certainly feel forced into it. There’s not another option, really.

I don’t want this to wreck years of my life financially. I don’t want to get buried. I could stay at home and probably call all of the billing companies, and they would put it off for a little while but—yeah, I’d rather risk going out and getting sick than have to worry about my finances. Definitely.

At this point in time, my tips have been 50 percent and more of my overall earnings. If I was strictly relying on what Instacart is willing to pay me, this would not be worth it. It’s only worth it because there have been a lot of generous people.

Interviews have been edited for length and clarity.

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WEBINAR: Demystifying Unemployment for 1099 and Gig Workers

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I’m a single owner of an LLC – should I apply for the Paycheck Protection Program, unemployment benefits, or both? I haven’t been eligible for unemployment in the past, but I think I might be now – how does that work?

The Colorado Small Business Development Center is pleased to announce a webinar tomorrow, Friday April 10, aimed at independent contractors, online platform workers, contract firm workers, on-call workers and temporary workers.

Get your questions answered about who should apply for unemployment, how to do it, when to expect funds, and more during this webinar hosted by the Colorado Department of Labor and Employment.

When: Friday April 10, at 10am

Register for this Online Zoom Meeting at https://zoom.us/webinar/register/WN_osmdiJb4SeSqh6S8rKCs0A

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Ask SAM: What the heck are “gig workers”? | Ask SAM

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Q: What the heck are “gig workers”? I keep seeing that phrase turn up.

J.W.

Answer: That is a phrase for freelance and contract workers who work short gigs, such as Uber and Lyft drivers, temporary workers especially ones hired for a specific task. According to Investopedia, a business news website, “the gig economy is based on flexible, temporary or freelance jobs, often involving connecting with clients or customers through an online platform.”

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