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Unpacking AB5, a recap

We held a March 4 roundtable at the Museum of Children’s Art in Downtown Oakland to unpack AB5. We had a highly knowledgeable panel, and a very engaged group of participants in the room and a nice spread of crudités and crackers. Resources to share:

  • Nina recommends the CA Lawyers for the Arts toolkit as the most thorough resource.

  • Arts for a Better Bay Area offers a take action toolkit which explains how to share your experiences with the lawmakers who are working on a new bill to revise the AB5 rules.

  • Nina can offer space at MOCHA for art camps. She wants to do more collaboration and recognizes that space in Oakland is very valuable and is driving up costs for arts organizations leaving less money to pay teaching artists.

  • Gisela Insuaste, Education Programs Manager at Kala Art Institute, can also offer space and is eager to collaborate across the East Bay.

  • Jill can offer technical assistance around moving teaching artists from contractor to employment to anyone who could use the help.

  • Nicole Sumner recommends looking at the model of pooling resources being pioneered by CultureWorks in The Philadelphia Building.

  • Californians for the Arts continues to post resources and updates here.

In attendance were representatives from Oakland School of the Arts, American Conservatory Theater, Berkeley Rep School of Theatre, Museum of Children’s Art, Kala Art Institute, Mission Cultural Center for Latino Art, Hip Hop for Change, Oakland Unified School District, Uphill Arts, Young Audiences of Northern California, Intersection for the Arts, ODC, as well as several teaching artists and consultants.

Most of us are grappling with these employment law issues as both teaching artists and arts administrators.

These notes from our conversation are paraphrased. None of these words should be considered quotations:

National Conversation and background of AB5 by Jean Johnstone, Executive Director, Teaching Artists Guild (TAG) Jean reviewed the history behind AB5. First there was the “Dynamex ruling” which established the ABC rules about who must be considered an employee, then came AB5 to clarify the rules and to carve out some exceptions. She has been following this story closely and has been engaged in national and statewide conversations about the issues and implications of the employment rules. Read ”Making Teaching Artists Employees” on the Teaching Artists Guild blog for the full story.

The impetus of AB5 is to protect workers. How do we protect the field of arts education? California often leads the way in labor issues. This bill is influencing similar bills in other states. Jean hears lots of misconceptions about limitations that can come with employment. She has often had to tell members of TAG that they can have many employers and that being an employee doesn’t prevent them from continuing to set their own schedules.

Todd welcomes attendees. Photo: Michael Palladino.

She confirmed that, based on the ABC rules, when a school brings in teaching artists for short term gigs, those teaching artists need to be treated as employees. Indi McCasey confirmed that the OUSD VAPA office has decided to only contract with arts education organizations who’s teaching artists are employees.

This connects with ideas about credentials for teaching artists. There is a Career

Technical Education credential that many

teaching artists can get which could allow schools to hire them depending on their agreement with their teacher unions.

CA Statewide & Bay Area regional Conversation

by Jean Johnstone, TAG and Todd Berman, Executive Director of the Arts Education Alliance of the Bay Area (AEABA)

Local organizations have been trying to figure out how to be more sustainable for several years. TAG and AEABA have collaborated on a number of events to discuss how organizations can better recruit and retain teaching artists. Together we identified Strategies For Recruiting And Retaining Teaching Artists and then asked who could commit to those strategies so we could be Working Together For Our Teaching Artists.

Panel of experts from left, Jean Johnstone, Nina Woodruff-Walker, Laura Garcia, Jill Dineen, Greg Baker.

Local Case Studies: A Tale of 2 Organizations By Nina Woodruff-Walker, Executive Director of Museum of Children’s Art (MOCHA), with a MOCHA teaching artist, Laura Garcia, and Jill Dineen, Executive Director of Leap Arts in Education, with teaching artist Greg Baker

Nina: We started with research. Half of the teaching artist staff were already employees, the rest were contractors. Met with each TA one-on-one. Most teaching artist contractors did not have a business license and did not have worker’s comp.

Nina’s husband is a member of the International Longshore and Warehouse Union (one of the strongest, activist unions in the country), so she lives the union life. Worker rights are very important to her.

Laura: There’s a lot of safety and coverage in becoming an employee. Living in the Bay Area is challenging.

Jill Dineen: Leap serves 8,500 kids mostly in San Francisco but also on peninsula and in the East Bay. She and her board took time to understand and prepare, then proceeded with transparency to convert TA’s to employment. They weren’t built to be an HR business! There were lots of challenges for the full time office staff. It’s not just a re-categorization of workers, it’s a full cultural and norms shift as an organization. How do you make all the staff equal partners in the work?

And it’s expensive. Jill estimates that the transition will have a $15-20K one time cost, and $30-50 in annual costs requiring more fund-raising. Must consider impacts in future years. Executive directors are talking and supporting each other. Jill had lots of conversations with Nina and with John Alecca (Executive Director of Young Audiences of Northern California, who was also in the room).

Jill wanted to make sure workers know about the protections that come with employment. Leap is allowing TA’s to opt-in to their 401K and is making sure there is shared ownership of intellectual property. It was important to maintain pay levels.

Greg: As a teaching artist with Leap and an architect, Greg had established a sole proprietorship for his architectural work. As an independent contractor you feel control over what you are doing. He used to hire an assistant to help him teach chess at a community center where was a contractor. Now that he is an employee there, he can’t hire an assistant.

Greg: What if I have my own business to provide TA services?

John Alecca: A business to business arrangement may not be affected by AB5.

Nina: The business likely needs to be a CA corporation. There are a variety of factors involved, so this needs to be evaluated on a case-by-case basis.

Laura: If we are hourly employees, how do we make prep time billable?

Nina: MOCHA has TA’s bill 30 minutes of prep time per hour of teaching.

Jill: the time-tracking is not fun. Prep time hourly needs to be tracked. Leap uses Gusto software.

Greg: Now overtime comes into play. If you teach 5 hours in the classroom, then have 2.5 hours of prep… you may have to put prep time on a different day to avoid going over 8 hours (which becomes categorized as ‘overtime’ under California law). This gets further complicated as the law requires breaks every four hours.

Nina: MOCHA is working on teaching artists entering hours into a system.

Q&A from participating audience moderated by Aimee Espiritu (Espiritu Consulting, AEABA board)

Nicole: As a master teacher with a higher hourly rate, I’m competing with more beginning teachers at a lower rate.

Nina: The organization decides how much the pay will be.

Jill: Leap has flattened rates – everyone past a certain period, makes the same rate. But now Leap can be more selective about recruitment and only hires highly-skilled workers.

Jill: we need to be honest and vulnerable with each other. (to Nina): Did you have pushback from TA’s?

Nina: We had to lower rates to afford payroll taxes. MOCHA made up for that by providing the ability to accumulate hours to get up to 40 hours of paid leave. One TA declined to convert to employee because she wasn’t working enough hours to accrue that time. Nina has calculated that if the paid leave is taken into account, the change amounted to a raise for most of their workers.

Employees get sick time (one hour for every 30 worked). At 32 hours per week, benefits are required.

Jill: Now program managers need to be considering all these hours limits, have to always be wearing HR hats.

John: number of employees can also affect requirements.

Juan Manzo (Education Director at A.C.T): what about one-time workshops? Someone giving a 2 hour workshop presenter for an education institution is an employee.

Nina to Jill: How has this affected your personal business as an musician?

Jill: I can’t just subcontract a drummer for a gig. Venues are less likely to hire an artist for regular gigs.

Jean: This is relevant. To be a great teaching artist you need to be a practicing artist.

Nichole Talbott (Program Associate at AEABA and teaching artist): I work for small organizations that don’t have much capacity to provide enough work. And what about when school is closed?

Jill: It’s difficult to find TA’s who can fill a lot of hours.

Laura: You’ve gotta hustle to find the hours to make being a TA sustainable. Works 19-25 hours per week for multiple orgs.

Jill: our employees are part-time seasonal. Now is looking for summer partnerships to provide summer work.

Greg: I have my own health insurance.

Nina: MOCHA has art camps all seasons. Has added adult art parties and also hosting adult parties with teaching artists. Can’t pay the $75/hr that is recommended by TAG payrate calculator. Spending $16000 on insurance, has high rent. Being transparent about expenses and is working together with TA’s to find solutions.

Jean: This wasn’t sustainable for teaching artists to survive and live in the Bay Area. AB5 is a splash of cold water to make us address this. MOCHA gives first right of refusal to their current TA’s for gigs.

Greg: We’re going to start thinking about how valuable space that we have is. Michael Palladino (Chair of AEABA board): How about a centralized back office to share administrative resources?

Nina: discussed this idea with Jill. Working with another agency to do some back end work. And how about sharing teaching artists?

Closing We finished by forming a circle and adding one last word or phrase to the group. Some of the words that came up: Optimism. Befuddlement. Worker collectives. Unionization. Gratitude. Gusto.

Closing circle. Photo: Michael Palladino.

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