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NOBODY GOT KILLED
(writings)

9/13/19

AB5

I'm attempting another pass at assessing an issue that has been weighing on my attentions the past few days-i.e., the recent passage of California Assembly Bill Five (AB5), which stands to reclassify some 1 million California workers as employees rather than independent contractors, bestowing upon said workers rights to benefits, wages, union membership, and other protections. The bill is all but assured to be ratified by Governor Newsom, who came out in favor of the bill in a Labor Day opinion piece. (AB5 would go into law on January 1, 2020.) Most pressing for California-based musicians are the many (still vague) implications for our industry.

AB5 is an attempt to align state law with a 2018 California Supreme Court Ruling (Dynamex Operations West, Inc. v. Superior Court of Los Angeles, colloquially known as The Dynamex Decision), which established a three-part "ABC" Test for determining what constitutes an employee vs. an independent contractor. Just for reference, this is the summary of said ABC test as detailed in the bill itself:

"...a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied:

(A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.

(B) The person performs work that is outside the usual course of the hiring entity's business.

(C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed."

The underlying mission behind this sweeping piece of legislation is to offset predatory employment practices, most visibly on the part of rideshare companies like Uber and Lyft, that (as was the case with Dynamex) classify workers as independent contractors for the ostensible purpose of maximizing company profits and screwing laborers.

I read the whole fucking bill. The text can be found here: https://legiscan.com/CA/text/AB5/2019

Subdivision (c) of Section 1 states, "The misclassification of workers as independent contractors has been a significant factor in the erosion of the middle class and the rise in income inequality." The intention here, as articulated in a NYT opinion piece, is to revise the parameters for labor laws entering the United States of the deep 21st century, initiating the process of catching up with a "21st century service and knowledge economy" that continues to rattle and shift under our feet.

Music is at least as old as time, and music work not nearly as old but significantly longer in the tooth than whatever service my students use to (attempt to) order pizza during class time. Left softly screaming in the midst of a seismically destabilizing digital economy are the manifold concerns music professionals face at the turn of the 2020s-from issues as basic and readily felt as a failure to keep pace with inflation, the contraction of longer, monied employment opportunities, and the troubling financials of digital streaming to less tangible problems like the comprehensive devaluation of music in an enduringly profit-driven economy.

That it's surprising in any way that the Recording Industry Association of America (RIAA) should ally, in effect, with the likes of Uber says more about the boggling, somewhat baffling implications of AB5 than it does about the music business in-and-of-itself-which is to say that the implications of this bill cut so broad a swath, and are so profoundly vague, that we're no longer talking in the realm of a labor vs. business dichotomy so much as a single state economy that is whiplashing against itself.

Not long after it seemed evident that the bill would pass, RIAA, together with A2IM and the Music Artists' Coalition, penned a guest column for Variety decrying the harm that AB5 could pose to California's music economy. As stated in the column, "Artists work with many people to help them realize their vision: producers, engineers, musicians, publicists, managers, music video creators, dancers, background vocalists, etc. Under this new law, an artist in California could become the employer of all of these people," unintentionally "[driving] independent artists out of the state."

Other industries, as laid out in Section 2 of the bill (in far, far too voluminous and complex a fashion to detail here), have lobbied and successfully won exemptions from AB5. Not so for the music industry. As Assemblywoman Lorena Gonzales (D-San Diego), the author of the bill, related to Billboard in a recent article, "the recording industry could not come to a consensus on language. Instead, the groups preferred no amendment related to their industry in AB5 at all." With the California State Assembly entering recess as of, well, this weekend (9/13/19 was the last day for any bill to be passed), the music industry will be left without an exemption and only the hope that some sort of amendment will be on the table come next legislative session.

As friends and intimates in the music industry have suggested, AB5 may not have much of an effect on the ground floor of the music economy-i.e., the basement sessions, self-recording sessions, and small time gigs that are bread and butter for developing a craft worthy of any degree of visibility. Despite what the RIAA column states, no bill is going to stop the 2019 equivalent of Ice Cube from downloading Audacity and assembling a mixtape in his bedroom. What this bill does throw into question are the implications for liminal work-i.e., industry labor that operates above board but falls well below the threshold, whatever it may be, for deeply profitable work. We''re talking sustainable, subsistence-oriented activity.

Off the top of my head, I'd be curious (and concerned) to see AB5's effect on:

(1) Tax reportage. Many musicians operate as small business owners (e.g., sole-proprietorships). I'm still not certain whether or not the RIAA's predications are true and that we're entering a dystopia wherein, say, budget John Coltrane has to provide benefits and a wage to budget McCoy Tyner or something to that effect, but there's a very real and immediate concern that this bill could have some effect on (a) reportage of income and (b) reportage of expenses for services rendered (i.e., small, if significant, tax deductions).

(2) Teaching. The dirty-but not really, because it's quite honorable and enriching-secret of carving out a livelihood for a musician in 2019 is that educational work is the realistic alternative/supplement to a brutal regimen of (likely low-paying) performance gigs. It's not clear how much AB5 will impact the music education industry. The assumption is that schools and institutions of higher education, which tend to hire musicians as proper W2 employees (as opposed to 1099 employees/individual contractors), and private teaching businesses will not be significantly affected, but music schools that rent rooms to teachers and arts institutions/nonprofits/etc. that traditionally hire musicians as contractors would have to conform to the reclassification laid out by AB5.

(3) Hiring for Paid Gigs. This bill could lay the groundwork for a more selective performance landscape. If bandleaders are forced to pay their sideman as proper employees, will this alter the fundamental affordability of larger ensembles-and with opportunities for performers contracting across the board, will increased competition drive musicians, as the RIAA fears, out of the state? Does AB5 favor institutions and venues that can hire staff and sound professionals as waged employees? (Knowing as little as I do about this facet of the industry, I'd be curious to know just how many people working as live engineers are waged employees as opposed to contractors). If AB5 does indeed favor this smaller selection of (supposedly monied) venues, what happens to California's landscape of smaller, above board venues?

(4) The Recording Industry, AFM, etc.. With admittedly marginal knowledge of how institutions like RIAA skew in a political sense, I'm curious as to their motivations with regard to both the passage of this bill and the apparent irresolution of an industry-wide exemption. For example: would it stand to reason that a contraction of independent music work could only benefit an already floundering major label record industry, or is the sense here that the collapse of California's independent music economy harms the record industry as a whole? According to a numerous reports, The American Federation of Musicians has been the entity complicating progress, in one round of negotiations offering language that other parties could not agree to, in another (possibly final) round rejecting an exemption outright. It's worth considering that AFM's interests might deviate from a culture of independent music production that has manufactured its own self-reliance, often outside of union auspices, and that the proportional bargaining power of this union seems, itself, a kind of anachronism.

(5) Free Work. The persons whose classifications are in question are categorized as individuals "providing labor or services for remuneration." What does this mean for the exchange of monies in public places-and how does this affect the (vast) landscape of donation/sliding scale shows that permeates the state?

(6) Artist-to-Artist Hirings. There may be unique implications here for artist-to-artist hirings; subdivision (e) of Section 2 exempts business-to-business contracting relationships, stating that while individual workers are still protected from exemption, business entities (including sole-proprietorships) are not. I'd be curious to read a legal professional's perspective on this item.

To reiterate: it's not entirely clear, and will probably be determined in the year(s) to come, what aspect of music work will be complicated by this bill. I should also stress that I am not a lawyer (though virtually my entire family is, and I do have a cobwebbed Public Policy Minor from Cal), and I am not equipped to unpack either the density of this bill or its impact on an industry that is rife with litigation. I'm as eager for correction and clarification as anyone.

In a more visceral sense, I found it both hilarious and maddening that the impending ratification of this bill has driven (no pun, really) gig companies to invest in a ballot initiative that would exempt them from the legislation in question. There's scarcely an end to this clusterfuck.

It's odd being a musician in the 21st century, working a job of primordial essence with these tools and conditions that feel ever more contemporary and, by that nature, temporary. Moreover, I've argued plenty that there is a fundamental tension between the paradise of Democratic Socialism that California aspires to inhabit and the ethos of brutal capitalism that it both emboldens and promotes. Musicians have survived worse, and to be thrust into the next era of American existence, should we not be drawn kicking and screaming into a world both scarily ill-defined and full of new practices to plant, grow, and promulgate?

I can't help but feel that this well-intentioned bill transfers some of the costs of California's bold future economy to a class of low income worker already exceedingly disenfranchised by a world this state seems all too eager to transform into. There's a negative effect here on cultural economies, like music, that don't operate under normal "rules of hire." (See the LA Times's downbeat take on AB5's effect on the trucking industry.)

If this issue is of interest-and if you're a musician who has read this far, I feel as if it must be-I'd urge you to contact your state representatives and local AFM and voice your concerns for posterity. Talk with your friends in the coming year about what problems they encounter and share strategies for survival. In the time before more drastic action is engaged in any meaningful way, there are few stronger remedies than being with and among others who are, like you, subject to the whims and fancies of a world spiraling out of control.

Current Listening

Wayne Shorter - Highlife, Etcetera, Emanon

I've always been profoundly moved by the words of writer Larry Kart, who once referred to Wayne Shorter (in a review for the later Blue Note album Odyssey to Iska) as a "musician trying to disappear." I was also taken with a recent twitter post of Mr. Shorter's that stated, "Playing music should be a struggle, like going through resistance. It's like how an airplane needs the resistance of the air to rise."

I find it impossible to listen to this music without hearing a kind of friction, and the dramatic undercurrent to so many of these records is the story of heroic soloism battling against its own instincts-emerging now and again in flashes of explosive power, but always consumed by the world that it inhabits. I think this is a big reason why I (and many others) tend to think of Shorter as a composition-first artist-he's a sublime curator of environments, and so much of his later work, from the funhouse quiet storm of Highlife to the aspirational floridity of Emanon, is defined by a general sonic impression rather than what is actually there.



I returned recently to my favorite of Shorter's Blue Note albums, a quartet date called Etcetera. It's a nice comparison to the justly celebrated Juju and serves as a kind of progress report on this particular node of post-Coltrane expression. For a context that was defined in its time by rhythmic tension and release-brought to its apotheosis in the Coltrane Quartet of the early-mid 60's-I find the dissipative anti-drama of this record really engrossing. Even the more traditionally explosive "Barracudas" (some of Joe Chambers's best work, and cleverly sampled by Madlib on a Yesterdays New Quintet record) has a kind of breathy diffidence absent from a lot of music cut from this general sonic cloth.



BTW-If you haven't dug into the casual genius on display at the Organissimo board, you should. Without Jim Sangrey, I may not have thought twice about the surreal subversiveness of the bridge to "Toy Tune", a song that, like Wayne at times, seems to emerge, emanate, and disappear with shattering ambivalence.

Also on the table: Kid Cudi - Speedin' Bullet 2 Heaven, Man On the Moon II: The Legend of Mr. Rager, Ambrose Akinmusire - Origami Harvest, Eddie Harris - Silver Cycles, John Law & Louis Moholo - Apartheid is Sinking, Dudu Pukwana/Misha Mengelberg/Han Bennink - Yi Yole