"These relief funds have been applied unevenly and there has been very little leadership coming from our states about the fact that freelancers are falling through the cracks," says Rafael Espinal, president of the Freelancers Union, which estimates that roughly 57 million Americans currently work as independent contractors.
For self-employed musicians -- many of whom had their incomes wiped out by the shutdown -- the situation is particularly distressing. Daryl Friedman, the Recording Academy's chief industry, government & member relations officer, recently established a helpline for members and has held webinars and daily Twitter Q&As to explain the ins and outs of the $2 trillion legislation, which provides unemployment benefits to freelance workers for the first time in U.S. history.
"This is a very important lifeline for many of these people," says Friedman. "The music industry was one of the first to suffer and probably will be one of the last to recover."
Slow and Unsteady Pace of Aid Getting to Freelancers
But despite the best efforts of the Recording Academy and other artist rights organizations, relief has been slow in coming for the large majority of freelance music workers. According to a snap poll Friedman conducted April 30 with a subset of the academy's chapter boards, over 70% of the organization's members -- the majority of whom derive most of their income from freelance work -- had yet to receive their one-time stimulus payments.
Much of the reason for the widespread issues around unemployment specifically, according to multiple people Billboard spoke to for this story, comes down to a disconnect between the federal CARES Act legislation and the needs of freelance workers in individual states, which were forced to build out separate PUA portals at an unprecedented clip to accommodate millions of new claims by gig economy workers. Perhaps the most troubling issue to arise from this disconnect is a glitch that has seen musicians in multiple states, including primary music hubs like California and New York, receive unemployment relief on the basis of their often minuscule W2 income, as opposed to the much larger portion of their income that derives from freelance work.
According to Manatt, Phelps & Phillips attorney Jordan Bromley, who has been working on amending the next round of CARES Act legislation to fix some of the issues currently affecting music freelancers, this disconnect derives from the legislation itself. Namely, the CARES Act specifies that if a worker surpasses the minimum W2 earnings requirement that qualifies them for the traditional state unemployment system (these minimum requirements vary from state to state), they do not qualify for PUA, which is based on 1099 earnings.
As a result, many freelancers are being considered for UI under the traditional system (supplemented by $600 weekly federal aid payments, currently due to expire on July 31), with state UI awards being based on W2 earnings that reflect only a small fraction of their true income. Adding insult to injury, traditional UI systems in many states, including Tennessee, currently do not allow applicants to backdate their claims to the date of loss -- meaning freelancers who have waited weeks to process their applications could be losing out on a month or more of valuable income.
"[The CARES Act legislation] says that you have to either not qualify for your state UI or have exhausted your state UI, so the state's hands are tied there," says Bromley. "They can't do anything until we fix it legislatively."
'We Were Told to Wait... and Then I Only Got $85'
Meanwhile, many music freelancers are falling victim to gaps in the current law. Among them is Danica Pinner, a freelance cellist based in Los Angeles who was awarded only $85 a week by California’s Employment Development Department (EDD) after she met the minimum earnings threshold -- even though she derives roughly one-sixth of her income from W2 work.
"Eighty-five dollars a week is a joke, it’s nothing," says Pinner, who has been getting by in part thanks to financial aid from nonprofits, including a $1,000 grant from the Recording Academy’s MusiCares Coronavirus Relief Fund and health insurance premium assistance through the Music Health Alliance, as well as her federal stimulus check, which she received via direct deposit late last month. But her experience with the unemployment system still stings, in part because California’s PUA portal wasn’t up and running until April 28 -- well over a month into the shutdown.
"We kind of feel cheated because we were told to wait while everyone else was filing for unemployment... until they made it better for freelancers," she says. "And then [I only got $85]. And [I’m] like, well, what was the point?"
Getting The Runaround
Compounding the disappointment for freelancers who fail to qualify for a level of aid that matches their income is the virtual gauntlet they're forced to navigate on the way there.
Eric Schmalenberger, a freelance artist who performs at the night club and creative venue House of Yes in New York City, describes the state’s unemployment portal in nightmarish terms.
"The online forms initially seemed very clear," says Schmalenberger, who first applied for assistance at the end of March upon his return from an Australian tour. But after completing his application online, he was told to call the state’s unemployment office for a follow up.
"It took me two weeks to get through to talk to a person," he continues. "When I finally talked to somebody, they said that they would send me something in the mail, like snail mail, with the final information as to the decision and what my follow up steps should be."
The letter never arrived. Now, when Schmalenberger attempts to access the website, he’s greeted by a message stating that his application is pending. "And now I can't get a hold of anybody on the phone," he says, "because they have changed the system so that only people completing applications can get through, but supposedly my application is complete."
Out of sheer desperation, Schmalenberger has begun writing his representatives in hopes that one of them will respond.
Even More Roadblocks for Artists Who Cross State Lines
For freelance musicians, particularly those at the bottom of the earnings heap, the unemployment landscape is rife with many other pitfalls. For one thing, many of them often earn income in several different states from cross-country tours, and they often aren't provided adequate documentation that satisfy state requirements for government assistance. According to Kevin Erickson, director at the nonprofit Future of Music Coalition, this is because most state governments have yet to adequately account for the complexities inherent in income derived from touring.
"Not every state has successfully updated their systems to accommodate the reality that [an individual’s] 1099 work is happening in a whole bunch of different states, and so some of them are still flagging that out of state income," he says. Moreover, venues aren’t required to provide a 1099 form unless they pay a musician more than $600 annually -- a threshold many on the lower tiers of the touring circuit never surpass.
Though individuals who make a living in the arts, and particularly musicians, are well accustomed to payments arriving weeks and even months after services are rendered, their distress has increased exponentially as they stare down a future with no work.
"When you're a freelancer, as much as it looks like you're not going to work from now till the end of the year, the phone rings or your email lights up and suddenly you've got a gig tomorrow night or whatever," says A2IM president and CEO Richard James Burgess, who worked as an independent musician for many years and is now active in the fight to fix flaws in the CARES Act for freelancers. "But obviously we have no chance of that happening right now. This is a very, very different situation and I think it's pretty catastrophic."
With a huge number of freelance music workers currently waiting in the wings for assistance from overwhelmed state and federal assistance programs -- a list that also includes the Small Business Administration’s forgivable Paycheck Protection Program (PPP) loans, which self-employed individuals are technically eligible for but rarely receive -- states simply don’t have the manpower to provide the kind of guidance creatives need. That has left advocates like Bromley, Burgess, Friedman, Erickson and others to serve as guides.
"A lot of creative people don't have a brain for the business side of anything," says Songwriters of North America (SONA) founding member Jack Kugell, who helped establish the MusicCovidRelief.com resource hub to help musicians navigate the web of government aid. "That's why they are so good at being creative, and that's why a lot of [them] end up getting ripped off by business-people."
Time for Congress to Catch Up to the Gig Economy
Well-intentioned as it may have been, the CARES Act has had the unintended effect of highlighting fundamental inequities in a system that has long catered to an ever-diminishing segment of the population: W2 workers. And for some, its messy deployment has been a galvanizing episode, opening up a potential pathway to a more egalitarian system.
"We are now mobilized," says Ari Herstand, co-founder of the nonprofit Independent Music Professionals United (IMPU), which was formed during the successful battle to carve out an exception for musicians in California’s controversial AB5 freelance law. "And I believe that Congress is going to be much more willing on a federal level and on a state level to amend the unemployment laws permanently to look out for independent contractors. We are in a gig economy right now, and it's taking Congress way too long to catch up with that reality."
Until they do, performers like Schmalenberger will continue to wait at the other end of a phone or keyboard, hoping and praying for a lifeline.
"I am so stressed out [that] when I'm not working on this, I'm just sleeping or complaining about [it]," he says. While he waits, he is left to wonder: "When my bank account hits zero, what do I do?"