The COVID-19 pandemic has devastated the arts and culture sector in the US, causing millions of job losses and billions of dollars in lost sales. For months, arts workers—artists and workers in the arts, culture, and entertainment fields—have been organizing and advocating for appropriate stimulus relief and economic transparency within their industry. The crisis has hit freelance arts workers, who are excluded from unions by federal labor law because of their independent contractor status, especially hard.

In our new report, we explored how California—which is on the forefront of addressing worker misclassification and home to a prominent arts community—is helping ensure more arts workers can engage in forms of collective action. We highlight four strategies to increase worker power that stand to protect not only freelance arts workers but all independent contractors from future economic shocks. A new administration offers an opportunity to make this a federal priority.

Freelance arts workers’ employment circumstances make the need to rebalance power acute

Nationally, arts workers are three times more likely than other workers to be self-employed. Low wages, wage theft, and unstable employment leave freelance arts workers in precarious conditions.

Arts workers have experienced disproportionate economic strain during the COVID-19 pandemic. Freelance arts workers faced higher unemployment rates than the overall workforce between January and September 2020. Arts workers have lost jobs and income not only related to their arts work but also related to their second or third jobs. Absent emergency economic relief enacted during the pandemic, freelance arts workers would have lacked critical unemployment and paid leave protections because they are independent contractors.

The disproportionate economic strain COVID-19 has placed on people of color and people with low incomes also threatens to further their underrepresentation in the arts, as high education requirements and an elusive safety net have historically served as barriers to entering the formal arts economy for those lacking adequate financial resources.

Barriers to organizing freelance arts workers

Independent contractors’ primary barrier to gaining worker rights is that they do not have collective bargaining rights under federal labor law. Further, antitrust laws expose independent contractors to liability (PDF) for organizing to improve their working conditions.

Alternative modes of organizing arts workers are also difficult because they often do not work in the same physical space or share the same employers.

Additionally, many artists do not think of themselves as workers and often operate in siloed arts disciplines, which may make them less likely to advocate for work-related policies or engage in cross-discipline coalition building.

Solutions to increase worker power among freelance arts workers

Unions have historically been a critical tool for rebalancing power between workers and their employers. They have helped (PDF) workers win better pay and working conditions and have been important for reducing racial and gender wage inequities. A modern expansion of worker power requires coupling expanded collective bargaining rights with support for newer forms of collective action so all workers can share in the prosperity they help create.

Below, we highlight four sets of solutions that stand to increase worker power for all independent contractors, including freelance arts workers. Federal government has the biggest role, but state government, nonprofit organizations, financial institutions, and foundations can help strengthen and support these efforts.

• Expand collective bargaining rights through reclassifying misclassified workers as employees. Under current labor law, the only way to extend traditional collective bargaining rights to at least some independent contractors is to reclassify workers as employees. Broader employment tests, like the ABC test California implemented under A.B. 5, enable more workers to obtain the right to organize. At the federal level, the proposed Protecting the Right to Organize Act would similarly require that employers extend collective bargaining rights to all workers according to the ABC test.

• Reform labor law so independent contractors have the right to unionize. Even if more workers are reclassified as employees, freelance arts workers will still lack collective bargaining rights. A comprehensive solution requires ensuring all workers, including independent contractors, are included under federal labor law. Changing the law to enable collective bargaining at the sectoral level (unionizing is currently only allowed at the employer level) would better meet the needs of the independent contractor workforce, as workers often do not share the same contracting entities. Sectoral bargaining may be particularly well suited to freelance arts workers because circumstances of employment vary widely by industry. Sectoral bargaining could set standards for each industry, ensuring a minimum wage rate, worker protections, and paid leave, among other terms.

• Support nonprofit organizations that build collective power. Nonprofit, member-based organizations, such as Freelancers Union, advocate on behalf of arts workers and other independent contractors. They’ve helped secure important policy wins, such as the Freelance Isn’t Free Act in New York City, which provides critical wage protections to independent contractors. Additionally, Working Artists and the Greater Economy provides artists with collective agency to negotiate compensation or withhold content from contracting organizations. Philanthropy can continue to support efforts like these in the absence of government action.

• Scale worker cooperatives. As worker-owned, democratically governed businesses, worker cooperatives (or “co-ops”) can help build collective power for all workers. They could be particularly effective for arts and other workers who prefer to work as independent contractors because they allow workers to maintain more autonomy. Efforts like Guilded, a recent initiative launched by the US Federation of Worker Cooperatives, are experimenting with how to provide benefits and protections to freelancers in the creative field through an online-based worker co-op. Additional government regulation and capital (PDF) from community development financial institutions and worker cooperative development organizations will continue to be critical to scaling worker co-ops.

Increasing worker power is critical to expanding access to benefits and protections to freelance arts workers and other independent contractors, but they won’t be as effective on their own. Additional policy changes will be needed to ensure hiring entities contribute to social insurance programs and abide by worker protections. Together, these solutions can disconnect fundamental protections from classification status and help create a more just and equitable future for all workers.