If you live in California, you’ve probably heard and felt much of the fear and uncertainty around California’s labor legislation AB5. What is it? Are you an employee? Or, are you an independent consultant? Well…it depends. Anne’s encouraging and informative interview with 3 x special guest Robert Sciglimpaglia, a lawyer with deep knowledge of employment and compensation issues, voice artist, Amazon bestselling author, award-winning producer and actor gives assurance to California-based talent to stay their course. Find out if this law is really as easy as ABC.
And since similar legislation is turning up in other states such as NJ, NY, ILL and even at the national level (HR2474), this discussion is worthwhile for talent throughout all our 50 states.
- AB-5 defines who is an employee vs who is an independent contractor
- Employees have more rights
- The ABC test answers who is an employee under the law
- ABC Test: A- Is the worker free from control and direction? B- The worker performs work that is outside of the usual work of the hiring entity and C- the worker is regularly engaged in this work
- The “B” part of this test is the most important
- Employers in California MUST use the ABC test
- Here’s how the ABC test applies to voiceovers (in Rob’s opinion): A VO is being hired by a recording studio, or animation studio, or an agent, and these are in a different profession, so a VO is not an employee
- It’s arbitrary and this could be intepreted different ways
- Union voice artists are already employees
- Loan out companies are also a murky issue
- Is VO Exempt as a “fine art?”: There’s no definition, so we don’t know
- The fines that companies have to pay are making people afraid and only willing to hire “employees”, this damaging the gig economy
- You will not be fined if you work as an independent contractor, when you should have been an employee. The company hiring you would face fines
- To pay as an employee, you have to pay half of the taxes and then have the other half taken out of their paycheck
- You can hire an editor, that’s a different profession
- You can hire a personal assistant, if they have a certain degree of freedom
- Each state has their own version of this law. The ABC test is a federal test
- If you’re an independent contractor, you pay all the taxes, vs as an employee, the hiring company pays half of the taxes
- The court is going to have to interpret this law before we have any concrete answers
- When you use an paymaster you’re being payed as an employee
- The potential hirer might make you fill out a lot more forms!
- Anything we should have in our contracts to protect us from violating AB5? Burden is on person hiring the VO to do the ABC test.
- It should be as simple as you have to pass the ABC test. It may not be that simple for the hiring entity, they may require additional paperwork to determine you are IC.
- AB5 will spur litigation of many other cases which will define the legal effect. It’s impossible to codify every situation for IC versus employee.
- If you’re paid as an employee, or through a paymaster, there is no worry.
- If you’re hiring a VO to do something not in your profession, they are ICs. If you are hiring them in same profession, pay through a paymaster.
- Just keep doing what we’re doing. Unless you’re being hired by another voice talent, you are not an employee
- We’ll have more understanding once the first big case is litigated
- Read the text of AB-5
- Read more about AB-5
- Check out Vocal Booth To Go and get 5% off with code: VOTech-Guru-5
- Find out about Rob and his book Voice Over Legal
- Learn more about Castvoices.com
- Recorded on ipDTL
- Awesome editing by Carl Bahner
AB-5 Specific Resources:
Freelancers Against AB5
Freelancers & Gigging Musicians Fighting AB5
@KevinKileyCA – CA Assemblyman, will be initiating a vote on #AB1928 (Repeal of #AB5) by the whole Assembly.
https://rolls.bublup.com/Anderson/AB5-Personal-Stories (includes VO stories)
Freelancers Against “Pro Act” (the national version of AB5)
Peter J. Marx, an attorney and voice actor:
- VoiceOverXtra – 01/20 https://www.voiceoverxtra.com/article.htm?id=00PSOPDK states: “In reality, AB 5 is of less concern for voice actors than for those who hire them. Misclassification can have substantial negative consequences for the hiring entity, as was already the case prior to the enactment of AB 5, which simply made it more difficult to classify a worker as an independent contractor.”
- Courvo.com 01/20: https://courvo.com/2020/01/cas-ab-5-a-legal-expert-and-voice-actor-responds.html
Forbes 02/27/20: “Will California’s AB5 Law Gag Your Gig Retirement?”
“In terms of consequences (whether intended or unintended), AB5 might more descriptively be called the “Gig Gag Law.” “California-based companies/employers are responsible for making sure all of their contractors are properly classified,” say Emily D. Baker, an attorney and podcast host based in Los Angeles. “However, for contractors that live in California and work with out of state businesses the contractor and the business must both be aware of California’s employment law and if the contractor is a misclassified employee. This is why you see companies like Vox Media severing ties with all California freelance writers.”
Other legislation of interest:
- HR2474 – national version of AB5, passed in House, not likely to make it to Senate (according to my CA senator)
- SB806 (CA Senator Shannon Groves) – repeal AB5 and replace
- AB2075 (CA Assemblyman Kevin Kiley) grace period through next year of AB5