Uber and Lyft drivers protest over wages outside of Ubers headquarters in San Francisco AP Photo/Eric Risberg, File
With Californias gig economy bill expected to become law, Uber and Lyft executives are worried that the business model of ride-sharing companies will collapse. Music industry associations are warning that recording studios will flee Los Angeles for Nashville or New York. In the art world, nobody is quite so alarmist, but experts say it could affect some culture workers and the companies that hire them, including independent curators and art handlers.
The bill, known as AB-5 Worker Status: Employees and Independent Contractors, was approved by the California Assembly and Senate and is now pending approval by Governor Gavin Newsom, who has already signalled his intention to sign it. Assuming he does, the bill would solidify a California Supreme Court decision from 2018 in which the court judged that Dynamex, a courier and shipping service, could not reclassify its drivers from employees to independent contractors as a way of cutting costs. The law would ensure that such a driver would be considered an employee and receive appropriate protections and benefits at the state and federal level.
“This is probably the biggest development in the field of California employment law in the last 10 years,” says Spencer Hamer, an employment lawyer at the international firm K&< Gates. “Its a change of landscape on so many fronts. Everyone from all different industries is watching to see what will happen in Sacramento.”
Carving out exceptions
Thaddeus Stauber, head of arts and cultural institutions at the law firm Nixon Peabody, noted: “If you manage a business, whether its art world or food services, California is saying no to the idea that you can build a business model on independent contractors without taking responsibility for their employment and overall well-being.”
The bill puts the burden on companies to prove that anyone they classify as an independent contractor meets the ABC test: 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 entitys business”; and 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 bill already carves out many exceptions for particular professions, including accountants, real estate agents, insurance brokers, doctors, dentists, lawyers, engineers, private investigators, salespeople and commercial fishermen. In the cultural sphere, architects, graphic designers, grant writers, and fine artists are identified as exempt, as are photojournalists and journalists who contribute fewer than 35 times a year to a particular company or publication.
But prolific freelance photographers and writers, and other art professionals not named in the bill such as independent curators, catalogue researchers and art handlers, could be affected. And Hamer notes that the law applies to California residents working for out-of-state companies as well.
The B requirement, which is getting the most attention, seems an especially high hurdle to clear. If a plumber comes to fix a leak in a gallery, his services would clearly fall outside the usual course of business according to the Dynamex ruling, and that person could remain an outside contractor. But if an art handler comes in to hang a painting, it would be hard to argue that the job is not part of normal gallery business. Hard, perhaps, but not impossible: Ubers chief legal counsel, Tony WeRead More – Source
