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 Rob 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.
Takeaways
Quick Concepts from Today’s Episode:
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
Tweet This
Share ideas with your own network ++
Referenced in this Episode
Direct links to things we brought up ++
Read the text of 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:
Facebook Groups:
Freelancers Against AB5
Fight AB5
Freelancers & Gigging Musicians Fighting AB5
Twitter:
Faces of AB5 @Ab5Of (also ref ab5facts.com)
@KevinKileyCA – CA Assemblyman, will be initiating a vote on #AB1928 (Repeal of #AB5) by the whole Assembly.
Other:
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.”
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
Full Episode Transcript
>> It’s time to take your business to the next level, the BOSS level! These are the premier business owner strategies and successes being utilized by the industry’s top talent today. Rock your business like a BOSS, a VO BOSS. Now let’s welcome your host Anne Ganguzza.
Anne: Hey everyone. Welcome to the VO BOSS podcast. I’m your host, Anne Ganguzza, and I’m coming to you live from a brand spanking new Vocal Booth To Go, a four by six, one of the biggest that I’ve stood in to date. It is amazing, I want to give a big shout-out and thank you to my good friend and booth builder Tim Tippets for bringing this to me and setting it up for me, and also a big shout-out to Jeff, owner of Vocal Booth To Go. You guys can sound like a BOSS like I do [laughs] in this Vocal Booth To Go. And you can save 5% on any product by using the code votechguru-5. Thanks so much to Tim Tippets for that and Jeff. Thanks, guys. You are amazing and thanks for helping to sponsor this episode. Okay, on with the episode! Super excited, guys, to be here with third time VO BOSS special guest, more than a lawyer, Mr. Rob Sciglimpaglia. Thank you so much for joining us again for this very special podcast on something that I think the voiceover community has had a multitude of questions on. We really just need to get someone’s expert advice, and who better than Rob Sciglimpaglia? Who is more than just a lawyer. [laughs] Rob is a certified Worker’s Compensation specialist, a national top 100 trial lawyer, gosh, a national top 10 personal injury lawyer, a super lawyer, well, we all knew that, right, since 2009 and a superb 10.0 – is that 10 point O – rated AVVO lawyer. And not only that, he is a voice artist, actor and director. Rob, I think you’re in Super Bowl commercial that is, is that not in a contest now?
Rob: It was.
Anne: For being one of the best?
Rob: It was on CBS greatest commercials. It’s been on like a bunch of times. It was number seven this year.
Anne: Ahh. And last but not least, the Amazon number one best selling author of Voiceover Legal – guys, if you have not taken a look at that book, it’s an amazing resource. I’ll give you some more information on that at the end of the show. Rob, thank you so much for being here with me today and answering all of these important questions that I know a lot of bosses out there want to know the answer to.
Rob: My pleasure.
Anne: Yeah. So today, we’re going to talk about California’s new AB5 law. I think probably one of the biggest questions that I get over and over in the forums is “can you just explain it to us in layman’s terms?” Like, “what is AB5 and how is it going to affect me and my voiceover business?” How is that for a small question to begin with?
Rob: Absolutely. I mean, AB5, the issues behind AB5 are not new. They’ve been being litigated, been going on for years and years and years and years. Basically what AB5 deals with is an independent contractor versus an employee. I litigated a case back in 2009 that went to the Connecticut Supreme Court. It’s called Rodriguez v. ED Construction and that was the issue. In Worker’s Comp., it happens a lot where the worker gets injured on the job, and are they an independent contractor or are they an employee and then covered under comp? That issue comes up all the time. That was the issue in that case. Worker was determined to be an independent contractor, not an employee so they weren’t covered under comp., but there’s a couple of tests that are under federal and state law to determine whether or not a worker is to be classified as an independent contractor or an employee. One of the tests is the famous ABC test.
Anne: Yes, that’s what we keep hearing all about.
Rob: Right, and that’s what AB5 did. It made ABC the test that had to be used. The ABC test sometimes can be ambiguous. There’s other tests that evolved under the law, like in Connecticut the case of Hanson v. Transportation General became the test, if ABC didn’t answer the question, you go to this test. And basically it’s under Hanson is whether you had a right of control over the person, over the worker. So if the employer or the hirer had the right to control that person in any way, then they would be considered an employee. That test under California law is the Borello test. So I’m sure you’ve heard people that have been following AB5 know what the Borello test is. It’s the same standard in Connecticut. You have the ABC test first. If you go through those steps and it’s still ambiguous, it’s still up in the air, you’d go to the next test, you know, which in Connecticut was Hanson. And in California it was Borello. So basically what happened was back in 2018, there was a case in California called Dynamex. Dynamex Operations West v. Superior Court. They were trying to figure out was this driver an independent contractor or was the driver an employee of the company? They went through the ABC test, and they couldn’t figure it out, so they went to the Borello test, and they determined that under Borello, there was not control because the person has right of their own schedule, they use their own car, that kind of stuff. They determined that the person was an independent contractor. Right? The Supreme Court overturned it and said no, you have to use ABC. And they determined that he was an employee, so that’s what Dynamex tested. Basically, let me go over the ABC test so that everyone –
Anne: Yeah, that would be great. What are the stipulations in the ABC test?
Rob: If a worker is hired by a company, right, they’re either going to be classified as an employer or an independent contractor. Under the ABC test, there’s three prongs basically. One, is the worker free from control and direction of the hiring entity? So you know, basically do they set their own schedule, do they use their own tools, that kind of thing? Do they figure out how they’re going to do the job, say it’s a carpenter, and the employer is not going to tell them, you need to put a nail there. That kind of thing.
Anne: What about a directed VO session though? I know that that’s on everybody’s minds.
Rob: Well, we’ll get there in a second. That’s the first one. The second one, this is the big one, the worker performs work that’s outside the usual course of the hiring entity’s business. And the worker is customarily engaged in independently established trade, occupation or business of the same nature as that involved in the work performed. So this is the big part of this test. This is where it’s stringent. What that means is, I’m a roofer. Okay? And I get hired by a roofing company to do work on a roof. What this says is because I’m a roofer, and I’m in the same occupation as the roofing company, I’m an employee. That’s what this is, ABC. So it doesn’t matter if I show up, you know, my own tools and on my own time, and I do the roof the way I want to do it without getting any control or any direction, right? As long as I’m a roofer and a roofer company hires me, under ABC, I’m considered an employee. Alright? It’s as simple as that, the ABC test. That’s what California codified. That’s what Dynamex said. Dynamex said you have to use the ABC test under this set of circumstances. So what they did is – every single independent contractor versus employee issue is a question of fact, they’re all different. There’s nothing that’s the same about them.
Anne: Right, right.
Rob: So the legislature did in California stupidly was said everyone has to use the ABC test.
Anne: And that’s it, no other test.
Rob: Forget Borello. You have to use the ABC. So basically what that comes down to, what it boils down to, is if someone is in the same occupation as the hirer, they’re an employee. That’s what it comes down to under the law. So for voiceover, let’s go back to voiceover.
Anne: Sure, please.
Rob: Because we’ll answer your question. See, in my opinion, I don’t think that AB5 applies to voiceover. Because a voiceover artist is being hired by, you know, a recording studio or an animation studio, somebody that’s not in the same business. It’s not a voiceover artist hiring another voiceover artist. If it was a voiceover artist hiring another voiceover artist, then that’s where the ABC says they’re in the same profession. They got to be considered an employee.
Anne: If it’s a direct hire from a company or a production company that’s hiring a voiceover artist, or let’s say, what are some other – what would be some other cases really? A direct hire or a production company, or?
Rob: Yeah, corporation.
Anne: Corporation. Yeah, that’s it.
Rob: A corporation that’s in the business of making books. And they’re hiring a voiceover artist. A voiceover artist doesn’t make books. We don’t make books. We record – we’re in a different profession. So under the ABC test, at least I think, a voiceover artist is not an employee. The problem is, it’s just, they make it so arbitrary that, you know, there’s penalties under the statute if you misclassify an employee. There’s criminal provisions in there, there’s big fines. The companies that are hiring just want to automatically say you’re an employee. And that’s kind of the way that it is for union voiceover artists. Union voiceover artists, they’re hired as employees, and you know the taxes are taken out and pension and health is paid, so that’s kind of the norm. It’s really for the nonunion jobs where nonunion artists have companies set up, and they’re getting paid as an independent contractor, that’s where it comes in more. Although it does come up in union too because if like a union artist has a loan out company or a loan out corporation, they don’t – aren’t necessarily being paid as an employee. It’s kind of a hybrid thing because they’re getting the health and the pension, but they’re not getting – like the wage wouldn’t go through their company. So that does not apply under AB5. Your guess is as good as mine.
Anne: So there’s all sorts of stipulations if you actually read like the examples. There’s the 35 pieces exemption. Can you talk a little bit about those exemptions? Because I’ve got some questions, people are like, you know, is this considered, is VO a fine art? I mean, is it exempt if it’s a fine art? Talk a little bit about those exemptions.
Rob: I mean, what they tried – a lot of these exemptions were already part of the law, you know like attorneys or doctors or accountants.
Anne: Right, other professions.
Rob: They’re always, they were always considered independent contractors. You know, even if I went to work for a law firm, I could work as an independent contractor, or I could work as an employee. They’re exempt.
Anne: So you as a lawyer could work for a law firm and because they were exempt, written out in the law, right, you would be fine?
Rob: Correct.
Anne: Got it.
Rob: Real estate agents have, they’ve always been considered independent contractors at least in Connecticut. I think in California too. In Connecticut, newspaper delivery, print people were always considered, you know, like the paper boy?
Anne: Sure, sure.
Rob: Always considered to be independent contractors, you know, since the 40’s. I’m pretty sure that California was the same, was the same way. So these are the exceptions that were carved out of the law, they were trying to put those, they were trying to codify those things and put it into law. Fine artists are one of the things that they carved out as an exception to the employer – I’m sorry, employee, independent contractor picture. So they’re saying if you’re a fine artist, you could be considered an independent contractor, just like me as an attorney –
Anne: Got it.
Rob: – could be considered an independent contractor. So but the question is, what’s a fine artist?
Anne: Exactly, and I don’t see the definition there.
Rob: They don’t define it.
Anne: I know there has been a lot of upheaval in the state of California about this to get the law, you know, modified or changed. It needs to add in more exceptions. So how is that process going to happen, or how does that typically happen?
Rob: The whole bill needs to be rewritten, so that it’s clearer. And right now it’s causing a lot of fear.
Anne: Yes, yes.
Rob: Because of the criminal parts of the provisions. The assumption that I’m hearing is people are assuming right off the bat that the law makes somebody hire a worker as an employee, and that’s not what the law says. That’s not what it says at all. It says that you have to apply the ABC test to figure out if the worker is an employee. That’s what the law says. It’s causing so much confusion that companies are just like, I don’t want to deal with that. I don’t want to have to go through the ABC test. You’re an employee. Do you know what I mean?
Anne: Right. Right.
Rob: That’s the end result, which that’s not what the law was and that’s not what this law was intended to do. It was intended to codify the Dynamex case. It was for drivers, the Dynamex case, people that drove cars like Lyft –
Anne: Sure.
Rob: – Uber and that’s, they’re carving out that exception. And that makes sense because a driver is being hired by a company that owns some kind of car company. It’s the same profession, so that makes sense. That test makes sense in that case, but it doesn’t make sense in our world, the voiceover world.
Anne: No, not at all.
Rob: Or the acting world.
Anne: And I think that a lot of people are afraid that you know, because of the confusion that it’s going to cause companies to just hire their own employees to do their own voiceover versus hiring independent contractors.
Rob: I mean, what they really should do is they pay you as an employee versus paying you as an independent contractor.
Anne: Yeah, what would that entail? A lot more paperwork? [laughs]
Rob: You’d have to do withholding. Say you’re paying someone $100. You withhold half of the taxes from the employee’s check, so say it’s like $7, 7%. The other half you have to match. So like you’re paying 15%, $7.50 is coming out of their check. $7.50 is matched by me, and then I have to send that into the state. That’s the procedure you have to go through. So not necessarily more paperwork because you still have the 1099’s you have to file at the end of the year.
Anne: It’s just a different procedure. Right.
Rob: Right. It’s just a different procedure, but I mean, the extra money, you know, whatever that extra money, whatever the extra money is on top of the wage, the $100, people might not able to afford, their companies might not be able to afford, small companies –
Anne: Right.
Rob: – that could cause issues.
Anne: Is there something that we should have in our contracts to protect us from violating any stipulations from AB5?
Rob: Unless we’re hiring, unless we’re hiring other voiceover talent, or we’re hiring editors or things like that –
Anne: Right.
Rob: That’s not our burden. Like it’s not our burden to do the ABC test. That’s who the person that’s hiring you –
Anne: That’s hiring you.
Rob: That’s their burden to do that ABC test.
Anne: Okay, okay.
Rob: There’s nothing we can do contractually unless we’re hiring somebody. You know, if we’re hiring an editor, they’re clearly not in your profession. That’s a different profession than voiceover artist, so you should be able to still hire them as an independent contractor. But like I said, the law is so new, and everyone is scared.
Anne: Right.
Rob: They think they have to hire those people as employees versus independent contractors.
Anne: And so for us as voice artists, can we – we can hire outside marketers, personal assistants, social media managers without any fear of violating any sort of stipulation of this?
Rob: Even under the old law, it depends on how much control you’re asserting over that individual. So say you’re hiring a personal assistant and you want them to come to your office from 9:00 to 5:00, right? Then they’re an employee because you’re asserting control over them.
Anne: Got it.
Rob: So that’s the Borello test. That’s the next test. Even if they’re not in your profession like the ABC test says, you would go on to the next test, you would go on to the Borello test, to determine that I’m asserting that much control over this person, so therefore they’re going to be considered an employee.
Anne: So then stipulating, you know, working 10 hours a week, is that, how much control is that?
Rob: I mean, are you telling them exactly how you want things done? Do you want – are you saying, I want you to do my books this exact way? Right? Then you’re exerting control. Versus saying here’s my books, do this and get me a report, or something like that.
Anne: [laughs]
Rob: You know what I mean? It depends on how much control you’re taking over that individual.
Anne: That’s such a gray area –
Rob: – to get the job done.
Anne: That’s such a gray area. Is it any benefit to us to have a business license, or does it not make any difference?
Rob: California you have to have a business license to do, to run any business.
Anne: Yes.
Rob: So you need it, and you know, the law, if you have a business license, then that’s where these, you’re gonna be following the labor code and things like that, that’s what you’re saying when you’re taking out the license. It’s just, you need it.
Anne: You need it anyways.
Rob: Yes.
Anne: You need to be registered.
Rob: Here in other states like in Connecticut, you don’t have to do that, to be a voiceover artist. You don’t have to have a business license.
Anne: Good distinction. Every state is different.
Rob: Same thing with the like, even though what I’m talking about with AB5, that’s California specific, every state has their own version. A lot of them are similar, and in fact the ABC test was a federal test. I think it was created by the IRS originally to determine, you know, taxation, because that’s really what it comes down to. If you’re an independent contractor, you’re paying all the taxes yourself. And if you’re an employee, then the employee pays half of your withholding tax. That’s the payroll tax.
Anne: Right, right.
Rob: That’s the common name for it. So the IRS obviously have a big interest in making sure that employees are classified properly. That’s where the whole – that’s where it started, the ABC test, the IRS and whether or not they’re – employees are classified properly for tax purposes.
Anne: So I have another question about how does the contractor’s location factor in? So for example, I live in California. This directly affects me, but if you’re a VO talent in Nebraska, and you book a job coming from California, how does that affect talent?
Rob: Again, it affects the person that’s doing the hiring, because they’re not allowed to classify someone as an independent contractor if they’re in the same profession. They still need to do that ABC test.
Anne: Right.
Rob: So you know, that’s how it’s affected. You know, it affects anyone they’re hiring even if they’re from another state. The company really has to worry about people inside their own state. A company that’s hiring a voiceover artist in California, that’s what – who they really have to worry about because that’s the authorities in California can come in and swoop down and you know audit and do all the –
Anne: Sure.
Rob: – all of the penalties and stuff. If they’re outside of the state, in Nebraska like you said, it’s really a Nebraska law. If they have a labor dispute, it’s going to be there, in Nebraska. It’s not going to be in California. So it really affects California employees/independent contractors more than it does people outside the state.
Anne: Right, that makes sense. How does it affect us if we work through an agency? How does that – the agency is our employer?
Rob: No, you mean like a talent agency?
Anne: Yeah, like a talent agency. If we get, yeah, hired through a talent agency, they’re the ones writing our check.
Rob: If you apply the ABC test to that, then they’re not in the profession. You’re not, you’re an independent contractor. If you just simply apply that test.
Anne: Right.
Rob: That’s where it’s kind of clear, the ABC test, in my opinion, is that you’re not in the same profession. If you’re not in the same profession, ABC says you could be considered an independent contractor.
Anne: Got it. So I feel like this has really cleared up whole lot for me personally because you’ve made it as simple as there you go. I mean, you have to pass the ABC test, and it’s as simple as that. So I really appreciate you making that a little less confusing for all of us. So what do you see in the future happening to this? I mean, is there, you know, are you seeing any sort of movement towards changing the legislation at all? What do you think is going to happen?
Rob: Like I said, I litigated a case back in 2009 – actually it was litigated to the Supreme Court in 2009. I think I started that case in 2005. The case you’re talking about, 15 years. This has been being litigated – this is litigated every day, this issue, employment – employee versus independent contractor. So this is just going to spur a whole other set of cases on like what’s a fine artist?
Anne: Right, exactly.
Rob: That’s a case that will go to court. It’s just going to spur on all kinds of litigation that will further define – so what they did was they took law that was kind of clear under case law, and they muddied it all up by trying to put a bright line test and a statute. So now all of the complaining and all of the people that are saying that they’re losing things and losing money, all of those people have cases, and it’s going to spur a whole bunch more litigation than it’s going to define what the legal effect is. You know, the courts are going to have to step in and that’s their job. The courts interpret the laws, the legislator makes them, the courts interpret them, and the executive branch enforces. So that’s those are the three branches of government.
Anne: Sure.
Rob: I mean, it’s going to cause a lot of litigation. That’s what it’s going to do, unless they go back to the drawing board and clear up all these things. It’s a futile effort anyway. It’s impossible to codify every single situation that can happen for an independent contractor versus employee. You can’t – there are so many factors involved with it, it’s just hard to do it. The test was fine before. It was fine. It was like, are you in the same profession? Yes, I am. But I have zero control. I have zero control over that person. They come and go as they please. They use their own tools. They use their own methods. I don’t tell them what to do. Okay, then they’re an independent contractor under Borello.
Anne: Sure.
Rob: So it was like, the test was fine before.
Anne: But now it’s just the ABC.
Rob: Now it’s like they took away that discretionary portion of it. They kind of made it mandatory. If you’re in the same profession, you’re, they’re an employee. You got to pay them as an employee, which is not always the case. It’s not. It’s just not.
Anne: So than in reality, then, so if we’re a voiceover artist, and we’re working for a company or a production company, it’s simply not the same. We’re not ever really producing voiceovers for another voiceover artist necessarily or getting paid.
Rob: Right. That’s my – that’s how I read this.
Anne: So that’s – it’s as simple as that. Is it as simple as that? That’s your final [laughs] would that be your final word like to tell us, don’t worry so much?
Rob: Well, it should be as simple as that, but I’m telling you, the employers are the ones, we don’t have to worry about it as the talent being hired.
Anne: The employers that are freaking out.
Rob: The employers are the ones that are hiring you. They’re the ones that have to worry about it. So they’re the ones that it might not be as simple as that for them.
Anne: Sure. Another question would be, does working with a paymaster serve as a workaround?
Rob: When you’re working as a – with a paymaster, if you’re paying yourself with a paymaster, then that’s what they’re doing. They’re paying you as an employee. If you’re being paid as an employee, then you’re going to be in compliance with the law.
Anne: Right. You’re good. Right.
Rob: If you’re paying someone else, through the paymaster, you know, like when I do a film, I file under SAG, I have to pay the actors as employees. So I’ll hire a paymaster to do all that paperwork for me. They do the paychecks, they do all the withholding, they do the taxes, they file with SAG, they do the pension and health, and then they just give me a bill and I pay it. Done. That puts me in compliance with AB5 because I’m paying everyone as employees.
Anne: Got it, got it.
Rob: The paymaster does all the work for me. So you know, that’s an easy way to be in compliance with AB5, you know, and pay people as employees versus independent contractors and you don’t have to worry about it at all –
Anne: Sure, sure.
Rob: – because you’re paying them as employees. So they charge like, I think the paymasters charge maybe like, I think they charge 10% of the final bill.
Anne: Okay.
Rob: And that makes every single person covered under comp.
Anne: Right.
Rob: You know, I don’t have to get an extra Worker’s Comp. policy. Saves $2000. Say my bill for a film is $2000. I’m paying $2200 for their fee. You know, to cover everything, cover comp., cover all the paperwork. It’s well worth it.
Anne: So then voice artists hiring other voiceover artists for other things such as social media or that sort of thing, you should do something through a pay service?
Rob: No, if you’re hiring another voice talent to do something not voice related, if you’re hiring someone to do marketing , they just happen to be a voice artist, that’s not the ABC test. You’re not hiring them to do something in your, in your customary profession. I’ll say, a voiceover artist, I see this frequently in the audiobook world. Voice talent will go to ACX, and they’ll get rights to a book and then they want to hire three or four other talent to do some of the voices in that book. Then I would say, that meets the ABC test. You should pay those other talent as employees versus independent contractors. So that’s where it could be, that’s where it could get a little hairy.
Anne: Got it.
Rob: Just go through a paymaster and you’re golden, or go through a payroll company, Paychex or ADP, one of the traditional ones.
Anne: So what can we do? What can we do as voice artists to, I don’t know, help our situations and help people feel more comfortable with hiring us?
Rob: From what I heard, some companies are making talent fill out a lot more paperwork. They come up with forms to check off the box, you know, a whole bunch of questions about whether they’re, you know, the control, all of the things we talked about.
Anne: Sure.
Rob: You may have more forms you have to fill in. As a voice talent, you can tell your potential hirer that we’re not in the same profession so don’t worry about it, but that’s definitely not – You know what I mean?
Anne: [laughs] That may or may not make them worry less.
Rob: Right. They’re not going to be like “okay, thanks. You know, I’ll talk to my lawyer.” You know what I mean? I know that lawyers are being more cautious now and giving more cautious advice now to their clients because this is so new. You really can’t foresee what’s going to happen under this law. The Department of Labor could go crazy and just like start saying “yes, they have to be employees. That’s how we read this,” start giving out fines. That’s the real issue right now is no one knows. You don’t know.
Anne: We don’t know.
Rob: Like I said, back in the 40’s, there was a case that said newspaper paper boys were not employees in Connecticut. How many years has it been going on? It was kind of clear under the law and this kind of, this muddies it. So –
Anne: Thanks, California. [laughs]
Rob: It’s not just– now I understand, Illinois is considering a bill, and New York is considering a bill. They can do it a lot clearer. If they want to, if they want to make, in fact they could just do it with the existing law.
Anne: Exactly.
Rob: If you think about it –
Anne: Yeah.
Rob: – Lyft drivers and Uber drivers, if they want them to be employees, that’s all they have to say in the law. If you’re being hired as a driver for a company that runs a driving service, they have to be employees. That’s all the law has to say.
Anne: Exactly.
Rob: You know what I mean? They could do it a lot clearer.
Anne: Exactly. It could be that simple.
Rob: Right.
Anne: Sure.
Rob: They’re trying to, like you make this huge net to capture as many employees as they can, but it’s not necessary. It’s just not, it’s just not necessary. I understand that people are classified as independent contractors every day that really should not be. They should be employees, but also there’s enforcement. That enforcement happens every day too. You know, like you have the labor areas in certain states where there is – labor is looking for day work laying out at a certain area, contractors drive by and pick them up, and hire them, and then they give them cash. They should be employees because that’s like a classic, I mean, they should be paid with a check, get the taxes withheld, not cash –
Anne: Exactly, that should be –
Rob: – covered by comp. and that stuff. That’s the abuse the law is trying to correct, but it’s just too wide of a net. It’s capturing too many legitimate independent contractors, causing fear among people that are hiring them. So that’s what has to be fixed.
Anne: Well, so the best advice you could give for us at this time would be?
Rob: I mean, as far as I’m concerned, keep doing what you’re doing. It really should not affect voiceover artists. The people that are hiring us are not in our profession. Unless, like I said, you’re being hired by another voice talent, because that happens too. I know that some voice talent hire other voice talent to do multiple voices on a project or whatever they’re producing. So that could happen, but for the most part, that doesn’t happen. That’s the minority. I would say that this really shouldn’t be much that you have to change because of this law. That’s the problem. It’s not up to us. You just have to go with the flow.
Anne: We’ll just have to wait it out. Hopefully things will –
Rob: See what happens.
Anne: Yeah. Hopefully things will be clarified or go back to the way they were.
Rob: There was nothing wrong with the way they were.
Anne: There was nothing wrong – yeah, it sounds to me like there wasn’t anything wrong with the way it was, so.
Rob: Well Dynamex, the Dynamex case, the reason why it was litigated was because the driver, the driver’s issue. So that took care of it.
Anne: Sure.
Rob: So if you’re a driver, you should be, you know, paid as an employee under the ABC test. So why the legislator took it to the next step –
Anne: To the next step, yeah.
Rob: – had to do a statute, that still baffles me. I don’t understand. It’s not necessary.
Anne: Well, Rob, thanks so much for clarifying a lot of our questions, and I guess we’ll just have to wait and see and hope that things clear up, and the fear subsides a little bit here. And in our next interview, we’ll be asking different questions, or it will be resolved and we can all just kind of go on. Which I’m going to go on my merry way, so I hope all of you BOSSes do the same. Because like Rob said, there’s really not a heck of a lot we can do right now about that. Just try to mitigate any fears that our employers would have in hiring us as independent contractors.
Rob: It’s definitely going to evolve. There’s going to be cases that are brought. As that happens, as soon as the first big case comes down, people will understand, you know, where the litigation is heading, and then people will be able to act accordingly. It’s just a matter of time.
Anne: Wow. Thanks so much, Rob. I so appreciate you taking the time out of your busy day and explaining this in layman’s terms [laughs] and help make things a little bit more clear for all of us. And I hope to have you back again when all of this is cleared up.
Rob: That would be great. It just gets repealed, that would be the easiest way to clear it up and just go back to the way it was before.
Anne: We can have a different conversation. There you go.
Rob: If you want, like I said, pass a law for drivers, go ahead.
Anne: Yes. Exactly. Let’s just pass the law for drivers and be done with it. There you go.
Rob: That’s what Dynamex did. So if they really want to codify it, that’s all they have to do.
Anne: Okay, BOSSes. With that said, go on and keep being BOSSes. And1 a big shout-out to our sponsor ipDTL. You too can network and connect like a BOSS and find out more at ipdtl.com. You guys have a great weekend. We’ll see you next week. Bye!
>> Join us next week for another edition of VO BOSS with your host, Anne Ganguzza, and take your business to the next level. Sign up for our mailing list at voboss.com and receive exclusive content, industry revolutionizing tips and strategies, and new ways to rock your business like a BOSS. Redistribution with permission. Coast-to-coast connectivity via ipDTL.