by Jean Johnstone, Executive Director, Teaching Artists Guild
The worry about worker protections has taken on a new urgency. In California, this is complicated by the recent passage of AB5, legislation that changed the landscape for gig workers. Meant to ensure worker protections for misclassified workers, the legislation had some unforeseen consequences for the arts community. Here’s what we have to do to protect small arts organizations, and arts and culture workers, during and after the Covid19 pandemic.
- Institute a Safe Harbor period for organizations to transfer their misclassified workers
- Support small arts and culture organizations to transition their workers
- Create a third class of worker with protections, the “dependent contractor”, in alliance with organized labor, which will allow arts organizations and individual artists opportunities to continue their practice.
- Chuck it all and create a system of support for ALL workers.
Artists, teaching artists, and the organizations that hire them (be those schools, theatres, museums, community centers or any other of the numerous places artists work in community) are being pummelled right now by the drastic toll on the employment landscape, as all who can shelter-in-place, awaiting a vaccine for Covid19. Many of us are out of work or facing greatly reduced work opportunities, as is the case in many fields. And when we emerge, the specter that faces our field will likely be one of reduced budgets and slow starts, rolled out over many months. Additionally we will be facing new debt, as even arts-rich cities such as New York are proposing budget cuts of 35%; many of the organizations we work with will have been wiped out of business altogether.
How do we get on our feet again? How can we ensure that beyond returning to 2019 levels of income and worker protections, we are able to take this opportunity during a time of severe, bizarre, and remarkable changes, to realize a robust economic landscape for all? As we first prioritize health and safety, for all of our lives, we then grapple with our livelihoods. The following solutions are specific in some ways to arts and culture workers in California, but also apply to many gig workers in other fields and in other States.
2020 saw the enactment of CA legislation pushing misclassified independent contractors into employee status. In so many ways, this was a huge win. It garnered worker protections such as wage and hour protections, like minimum wage, overtime, rest and meal breaks; regular payment, and legally mandated benefits like worker’s comp.
Aimed at gig workers for Uber, Lyft, Instacart, and other similar massive corporations whose workforce is largely unprotected, it represented an enormous offer of a return to the bosom of basic worker rights which were initially created and enshrined in the 1930’s New Deal, lifting our society out of the Great Depression and outlawing such practices as child labor. For a majority of teaching artists, whose primary and usual ways of working fit the category of employee clearly, this makes perfect sense. Thankful for the push for more protections for labor in general and our teaching artists specifically, we were aware of the threat to the field that AB5 highlighted. How can we assure that our sector stays healthy across the board: that workers are rightfully protected and that nonprofit organizations maintain the ability to survive, suddenly faced with the prospect of a 30% increase in costs they were unable to budget for? We are not talking about large, for-profit corporations who have been able to enrich shareholders by misclassifying their labor force, but small, non-profit organizations who rely on philanthropy and ticket sales, who by definition already do not profit, and have no coffers from which to pull, and whose miscategorization of artists often stemmed from the dilemma that arts business models frequently do not fit into the neat binary of employee or contractor status. For these organizations and artists, the judicial ruling of the Dynamex Decision and AB5 represented an existential threat. How could a small theatre company keep producing its work? How could a gigging musician continue to function? This is an unusual fissure, which organized labor and progressive political leaders and policymakers would do well to consider. How is it that many individual artists and small, non-profit arts and culture organizations, appear to be siding with mega-tech corporations?
Artist communities rallied. Recent amendments to the law have added musicians to the list of exemptions. Other categories of artists have been less successful in their pursuit. There are, of course, pros and cons. However, this exemption, and the fact that many other artists have also fought to be excluded from the law, even as they desire protections, illustrate that the binary categories formulated 100 years ago no longer serve how we work today.
So what makes sense? Do not these workers, too, deserve the protections originated by Franklin Deleanor Roosevelt and the New Deal? The answer is of course yes. How? Perhaps we need another category of worker, the “dependent contractor.” A creation like this cannot be an affront to unions and our core belief in organized labor as a key force behind necessary worker protections. In fact, we need organized labor to ensure that the creation of a category such as this will not contain room for corporate misuse of the category. This must serve workers. How we work has changed for the vast majority of Americans, not just arts and culture workers. More than a quarter of all US workers participate in the gig economy in some capacity. That’s an astonishing 57 Million people. Unless we are able to acknowledge and respond to the reality of work today, we will be bound up in a system that does not make sense for the progression we have since experienced.
Other countries (Canada, Spain, Germany) have implemented aspects of this and there are many sound suggestions for what this third class of worker might look like. What we need is something that protects our rights and allows us the freedom to work in our chosen fields and areas of expertise, which do not hew to the traditional model of labor. There are many ways to spread the responsibility of worker protections, including a balance between what the government provides based on the taxes we pay, and by hiring organizations themselves, through shared payroll services and concocting ways of paying into a system of benefits for shared workers, ie, workers who perform tasks for multiple organizations in the same field. All are feasible solutions.
Currently, there is a bill in the CA legislature which proposes a 3rd class of worker. Introduced by Senator Galgiani on February 14, 2020, this bill proposes a “modern policy framework that facilitates independent work for those who voluntarily choose it by creating a third classification of workers with basic rights and protections relative to work opportunities, including minimum wage and occupational accident coverage, protection from discrimination, and paid medical leave where required by law.”
In addition to ensuring worker protections through new models, we need a safe harbor period instituted immediately in CA for small organizations, nonprofits and arts and cultural organizations specifically, who have not had the resources to shift misclassified workers to employees.These arts organizations are now fighting for their existence and attempting to pivot their offerings in a worldwide pandemic. With over 1.0 million full-time employees and over 400,000 contract workers in California, the creative industries represent about 8% of the total statewide workforce. Lawmakers can and should move quickly to create a period in which arts organizations may be reasonably required to gear up to this change. It could be based on budget size or other considerations. This grace period is vital, especially now.
Finally, we need to devise a system of one-time support to get these organizations into compliance and help keep them there. This was initially on offer in CA, with 20$ million slated for this kind of support to arts organizations, but the pandemic has laid waste to this pool. It is no less needed, however. Arts organizations and practicing artists must survive economically. As FDR’s Secretary of Commerce Harry Hopkins noted about artists’ inclusion in The New Deal programs, “Hell, they’ve got to eat just like other people!”.
Ensuring reasonable supports for arts and culture organizations and their many CA workers is the right thing to do. It’s possible to do, and it is the sustainable thing to do, ensuring a stronger economy and a stronger democracy at a pivotal moment. “The arts cannot thrive except where men are free to be themselves and to be in charge of the discipline of their own energies and ardors. The conditions for democracy and for art are one and the same. What we call liberty in politics results in freedom in the arts.” These words from President Roosevelt in May of 1939 echo louder than ever. While we all stay home to protect each other, and our elected officials and government employees scramble to support frontline workers in healthcare and essential services, Economic Task Forces are being created, to begin to understand how and when we will piece our jobs and lives back together when the immediate danger is passed. We join the clamor of every worker whose livelihood is rapidly disappearing. And even as such, we still provide our services in inspiration, entertainment, and education, for millions upon millions of Americans isolating at home.
But a nagging question arises. Let’s take a very quick moment to consider how a worker is paid and afforded protections. As a status, Independent Contractor continues to be an accurate description of a certain category of worker. But why might we not provide protections to this class of worker as well?
While the classic independent contractor, in business for themselves, is a distinct category which fits many, are they appropriately safe guarded? The answer is easily, no. All workers deserve basic protections. Add to this the original challenge which AB5 attempted to correct for, estimates that of the tens of millions of US Independent Contractors, millions are misclassified. Why? Companies which misclassify workers do it occasionally by mistake, but often quite deliberately, because hiring people as Independent Contractors costs them on an order of 30% less than an actual employee. Setting values judgements aside momentarily, whether this is because a company is trying to make money for investors rather than safeguard protections and fair wages for employees, or because they are a struggling nonprofit with a small budget trying to stretch philanthropic dollars in service of a charitable cause, or a theatre company who brings various artists together for a short period of time, what if workers were protected no matter what?
Why not acknowledge healthcare as a right and provide it to everyone, regardless of employment status?
In my next post, I will explore this idea’s possible ramifications for arts and culture workers, and…the proposal of a new WPA.
Happy May Day.