A Hefty New Study Looks Beyond AB-5 to the Future of Labor Policies and the Arts

Janos Gereben on February 1, 2021

Now complicated by the pandemic, attempts “to regulate the status of gig workers,” including artists and arts workers (and journalists, parenthetically), has created turmoil for over a year now.

Into that thorny situation comes now a substantial new report released last week by the Center for Cultural Innovation, with funding from the Hewlett Foundation for the study of labor policies and arts workers. The ongoing research will support the work of arts advocates, labor advocates, and policy makers navigating the latest challenges in the situation.

Among major findings of the study:

– New solutions are needed that include independent workers in social-insurance programs in order to protect artists, reduce barriers to arts work by people of color, and enable arts workers to move more freely across hiring entities. “Solutions that work for artists will work for millions of others.”

– People of color are relatively underrepresented among the arts workforce: 27 percent of arts workers compared with 36 percent of the national workforce are people of color.

– Nationally, arts workers are less likely to work full time than the workforce as a whole. Arts workers are more than three times as likely to be self-employed than the larger workforce.

– Approximately 31 percent of arts workers are self-employed compared with approximately 10 percent of the broader workforce.

– 35.4 percent of the 644,000 arts workers in California are self-employed and without the benefits and protections of employment, compared to 11.8 percent of the overall population.

The report also looks at some potential policy changes that may help with these problems and create a more inclusive social safety net. It is intentionally open ended, given that solutions may have various proponents and critics, but it does propose a few ways that some of these challenges can be addressed, such as:

– Strengthening classification laws to combat misclassification of employees as independent contractors.

– Extending workers protections and social-insurance programs to freelance arts workers and others working as independent contractors.

– Strengthening and scaling collective efforts to rebalance power and support freelancers

Emiko Ono, director of the Performing Arts Program at the William and Flora Hewlett Foundation, commented on the study:

Arts workers understand what it means to be a gig worker. If we start to look at updating labor policies with an eye toward arts workers, many types of vulnerable workers and the employers who depend on them would benefit.

Labor advocates have long been concerned about the diminishing benefits and protections afforded to workers. The health and economic consequences of the pandemic have uncovered the magnitude of the issues for both individuals and society and illustrate the very present need and opportunity to better reckon with the realities of our modern workforce.

Rectifying classification issues are part of the solution, and we can build a system in which the many different kinds of workers who operate outside the traditional bounds of employment can be better protected and supported.”

In 2019, California passed AB-5, described by the study as a law that clarified and tightened existing law by establishing a stricter test to determine who is considered an employee. In doing so, it broadened access to the rights, benefits, and protections provided to employees — and left arts organizations and artists struggling to understand and comply with the new law.

The net effect of AB-5 and the legislation that replaced it, AB-2257, says the study, has been to require many employers to convert their independent-contractor workforce to employees by creating a more rigorous and clearer legal standard for contract work. This has created a burden on already-stressed performing arts organizations as well as myriad unclear situations, resulting in major setbacks for them.

In the arts, it brought attention to longstanding issues of worker misclassification in parts of the sector that are heavily reliant on the lower-cost labor of independently contracted workers — and broke up relationships, cost artists (and others) their employment, and had a sinister impact on small, financially challenged organizations.

AB-5 went into effect on Jan. 1, 2020. Three months later, the COVID-19 pandemic hit and unemployment skyrocketed. Arts workers, the study says, were left without a safety net. National unemployment rates for arts workers skyrocketed, peaking at 21.7 percent in July 2020. Many arts workers were unable to access pandemic unemployment assistance (PUA). This crisis has further demonstrated what the study calls “the need for permanent solutions that provide core workplace protections to all workers, including independent contractors.”

Before the pandemic, 10.6 million workers were classified nationwide as independent workers (roughly 7 percent of the workforce), and this share of the workforce has been rising with more workers living artists’ precarious gig-work lives.

Artists and arts workers are three times as likely to be self-employed than the general workforce. In California, 35 percent of arts workers are self-employed and work on contract or “gig” work, and no fewer than 600,000 Californians are considered arts workers.

The pandemic has revealed the vulnerability of too many Californians whose work as independent contractors left them unprotected in the event of a prolonged pause in income. This is exactly the problem that AB-5 and subsequent legislation AB-2257 was attempting to fix in addressing misclassification. The federal Pandemic Unemployment Assistance provided some support, but the program in no way meets the need for a growing percentage of the workforce that operates as independent contractors, the study concludes.