New “Music and Entertainer” Exemption from the Strict “ABC” Test

In response to more than a year of meetings, fact-findings and discussions between legislators and the music industry, AB 2257 and new Labor Code 2780, effective September 4, 2020, provide a new music and entertainment industry exemption from the strict “ABC” test for independent contractor classification.

Now eligible to apply the more-forgiving Borello “balance of factors” test:

• Musicians, vocalists, and other recording artists (must receive minimum and overtime wages when not receiving royalties or a share of the earnings)
• Composers
• Songwriters, lyricists, and proofers
• Musical engineers
• Sound mixers
• Record producers and directors
• Other professionals involved in a sound recording/musical composition’s creation, marketing, promotion or distribution

Individual performance artists (including comedians, improvisers, magicians, illusionists, mimes, storytellers and puppeteers) can also be ABC test-exempt when performing original, creative work if they are free from the hiring entity’s control and direction both in contract and in fact, retain their intellectual property rights, and can set their terms of work and negotiate their rates.

Single-engagement live performance musicians may avoid the stricter ABC test unless they are headlining at a concert venue with more than 1,500 attendees or performing at a music festival with over 18,000 tickets sold daily.

The ABC test will continue to apply to performers who:

• Perform as part of a tour or series of live performances at various locations;
• Regularly perform in an amusement or theme park; or
• Perform in a symphony orchestra or musical theater production

The fine-point boundaries of this law thus require any “hirer” and “hiree” to ensure they are adequately defining their relationship to qualify for this looser “Borello” test for independence.

See also:

• California’s Newest Independent Contractor Law Part 4 – Amateur Umpires and Referees Among Expanded “Specified Occupations” Exceptions to Strict Test (October 22, 2020)
• California’s Newest Independent Contractor Law Part 3 – “Fine Artists” and Other Clarified and Expanded Professional Services Exemptions (October 10, 2020)
• California’s Newest Independent Contractor Law Part 2 – Revised Referral Agency Exception (September 24, 2020)
• California’s Newest Independent Contractor Law Part 1 – Revamped Business-to-Business Exceptions (September 17, 2020)
• Gagging the Gigs, Plan B – California Remodels Exceptions to Its Strict Independent Contractor Test (September 11, 2020)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

October 29, 2020