by Rotimi Agbabiaka
Last month, California’s AB5 went into effect, requiring companies across the state to reclassify their independent contractors as employees in order to comply with classification guidelines set down by the California Supreme Court’s 2018 decision in the “Dynamex” case. The law, which was aimed at the profit-maximizing practices of tech giants like Uber and Lyft, has had an overwhelming effect on the cash-strapped theatre industry, which routinely classifies its working artists as independent contractors.
While proponents have praised AB5 for ensuring that arts workers are guaranteed the protections and benefits of employees, some theatre practitioners see the measure as placing a massive burden on small nonprofit theatres, undermining their ability to stay afloat. Faced with what many are describing as an existential threat, theatre companies and advocacy groups are joining forces to find solutions.
Twenty-nine Bay Area companies have come together to form the Coalition of Community Artists, an effort spearheaded by Becky Davis, board president at Altarena Playhouse, after a visit to the state capitol. Davis spoke to representatives about the difficulty her company was having complying with the law and was advised that community advocacy in the form of a group letter would be more effective.
Becky Davis. Photo courtesy Ms. Davis.
“I asked about petitions and was told that petitions don’t do much,” Davis says, “whereas a sign-on letter has a little more impact. Instead of a bunch of individual organizations contacting their reps themselves, it’s a unified message. It shows that this is a unilateral concern among all the groups in our industry.”
Davis reached out to members of the theatre community via Facebook and email and began collecting stories and suggestions for what to include in the letter.
“The most common thing I’m hearing is a lot of confusion and chaos,” says Davis. “There’s a lot of anger and small theatres feel devalued. What this law does is it invalidates their right to exist.”
Based on input from companies like Cinnabar Theatre, Los Altos Stage Company, and Shotgun Players, the sign-on letter cites the limited resources of member companies and the crushing budget increases (“from 15 to 40 percent to much more”) necessitated by the new law. It requests an exemption from AB5 for nonprofit arts organizations and makes other recommendations (income-based tiers, a grace period) in the event that an exemption is not possible.
In raising a unified voice, the Coalition hopes to influence AB1850, a “cleanup” bill submitted to the state assembly two weeks ago by Assemblymember Lorena Gonzalez, who authored AB5. The bill is currently being drafted in committee before getting voted on in the spring and Davis wants small nonprofit theatre companies to have a seat at the drafting table.
“My main goal is to illustrate the concerns and to describe the environment, the industry that we are operating in, for the people who don’t know because the reason we’re in this situation is that they didn’t hear from anyone of our organization’s style or size when they were writing the law,” says Davis.
Julie Baker. Photo courtesy CFTA.
For Julie Baker, executive director of arts advocacy group Californians for the Arts, finding a lasting solution to the problems raised by AB5 will require convincing lawmakers about the value of the arts.
“If we look at a common goal of what we want as a sector, we do want artists to be paid with good wages and benefits and protections. So we don’t want to lose sight of what our common goal is. It’s just really hard for us all to get there,” Baker says.
“And the reason it’s so hard for us to get there is that there is systemic undercapitalization of the arts and cultural organizations. We are not looked at as ‘must haves,’ we are looked at as ‘nice to haves.’”
CFTA is using a “multi-pronged approach” to addressing AB5. In addition to talking to lawmakers about legislative fixes, the organization is also requesting more arts funding. On February 6, Baker met with the California Arts Council, which disburses state funding for the arts, to request an emergency allocation to help arts organizations comply with AB5. Baker also asked the CAC to provide ongoing general operating support for arts organizations since most of the council’s current grants are project-specific and provide little administrative funding.
CFTA is asking organizations and arts professionals to sign this petition if they feel emergency funds would benefit them. Baker hopes that a large number of signatories will sway the council when it deliberates in April.
“Let’s say ten days before the meeting we submit that and say, ‘Look we’ve got about a thousand signatures,’” Baker says. “To be able to present and say “We’re not kidding, we’re not making this stuff up.”
Advocacy is already paying some dividends. Two weeks ago, Gonzalez and Assembly member Christy Smith put forth a proposal allocating $20 million of the state’s next budget towards helping arts organizations comply with AB5. The request is for a one-time allocation but Baker is lobbying to make it ongoing.
If they are approved, the proposed allocation and any legislative cleanups wouldn’t take effect until next year and many theatre companies are uncertain if they can withstand current conditions for that long. To help local organizations explore all their options for survival, Theatre Bay Area is enlisting employment law firm, Littler and Mendelson. The firm will provide pro bono legal advice to be posted in the members section of the TBA website.
“We asked them to look at three broad brush areas from where we’ve been getting the most questions,” says TBA executive director Brad Erickson.
The first section will focus on middle to large companies that are planning to fully comply with AB5. It will contain answers to frequently asked questions about contracts and employee classification as well as template documents to help companies craft the appropriate forms.
The second section aims at smaller budget organizations who cannot afford to make their workers employees and are pivoting to an all-volunteer model. It will advise companies on how best to transition and will help them determine how to compensate their artists as much as they can in a manner that’s legally permissible.
“I’m hoping the smaller companies are realizing that they really don’t have to close their doors, they all have the option of going to an all-volunteer status.” says Erickson. “We want to make sure that if companies are looking at this option that they’ve got the best information in front of them so they can make an informed decision.”
The third section will contain information for designers and other artists who want to set themselves up to engage in a business to business relationship with a theatre company, which is permitted under AB5 and would help them avoid employee classification.
TBA plans to have the legal guide up on its website in a month and holding a convening in the East Bay with a lawyer from Littler and Mendelson, who will demonstrate the online resources and answer community questions.
Susie Medak. Photo by Cheshire Isaacs/Berkeley Repertory Theatre.
Meanwhile Susie Medak, managing director of Berkeley Repertory Theatre, is coordinating the state’s seventeen LORT theatres and other arts organizations of various sizes in order to share information and make sense of the new requirements.
“At a meeting of the League of Resident Theaters a few months ago, I asked people to volunteer for our own little think tank, and we would meet on the phone,” she says.
The group has expanded to include members from smaller Bay Area companies and other arts organizations that reached out to Medak for advice once AB5 became law.
In meetings and consultations with lawyers, the group is trying to find clarity and consensus around the more confusing provisions of AB5.
Medak is also making frequent calls to her representatives in Sacramento.
Indeed, the furor over AB5 seems to have impressed upon the theatre community the importance of telling its story to the legislature. Theatre advocates are committing to making sure their voices are heard when the laws are being drafted.
Davis recommends that theatre practitioners visit the website of advocacy group, Arts for A Better Bay Area, which will soon include a guide to submitting a letter that specifically address AB1850, the cleanup bill being currently crafted in the state assembly.
Theatre Bay Area is also maintaining a resource site around AB5.
Baker advises theatremakers to sign the aforementioned petition and join arts advocacy groups in meeting with legislators on April 15 for arts advocacy day in Sacramento.
“This is really a time for us,” says Baker. “Even with this huge disruption that this legislation is causing, it’s actually helping us to galvanize the field and to be visible to lawmakers. This is a really good outcome and byproduct that keeps me hopeful. We’ve always had our champions of the arts but now a wider variety of lawmakers are recognizing our value and our impact and finally, also making the correlation to investment.”