Portable Benefits for Artists: Progress, Pitfalls, and Possibilities
Why artists and gig workers need to reclaim the conversation.
When it comes to benefits, it can feel like there’s only bad news. Affordable Care Act subsidies are set to expire at the end of the year, increasing premiums by 26% on average. The Medicaid cuts Republicans passed this summer will leave nearly 5 million people without coverage. And if you get employer-sponsored health insurance, it’s not much better.
But there’s a bright spot in Dallas worth paying attention to.
Arete Health Shield recently partnered with the Dallas Music Office to create Creatives Care Dallas – a health and wellness program that makes preventative care and mental health resources affordable and accessible to gig workers and artists in Dallas County. For a $65/month flat fee, those who join Creatives Care Dallas will receive virtual primary care, 24/7 telemedicine urgent care, DNA assessments, virtual behavioral health, 15-50% discounts on dental, vision, and medical procedures, and $0 copay on the top 2,000 prescription medications. Creatives Care Dallas members can also include non-family members (up to four) on their coverage plan, which could include dance collaborators or bandmates.
Dallas modeled their program on Fort Worth’s Sound Care program, which was established to help Fort Worth musicians access reduced-cost preventative care and treatment with their local healthcare system. Health Alliance for Austin Musicians also provides important preventative care to creative workers. While these programs do not replace insurance and isn’t comprehensive coverage, these programs are still exciting because they address a key affordability challenge for creative workers.
Other communities are following suit. In New York City, the City’s Live Performance Industry Council is researching what health care benefit models might work for local artists and Freelancers Union is working on a feasibility study.
The Dallas program offers a promising model for portable benefits.
Portable benefits are safety net products, such as health insurance, paid leave, and retirement savings that, unlike traditional employer-based benefits, move with the worker from job-to-job, and can accept contributions across multiple gigs. To learn more you can read this Snapshot of Portable Benefits for Artists and Creative Workers.
Portable benefits are an important strategy for expanding social protections to independent and gig workers, but they don’t grant access to all employment rights and protections like minimum wage and overtime, unemployment insurance, protection from discrimination, or collective bargaining rights. Also, just because benefits are portable doesn’t also mean that they’re affordable. The design of these benefits really matters.
Unfortunately in the United States, the political debate about portable benefits is not focused on figuring out how to design a program that is truly accessible, affordable, and delivers high quality benefits to independent workers. That’s the debate we need to have! Instead the policy conversation has gotten all mixed up with the issue of worker classification – one that matters quite a bit to some workers, but is not as relevant to creative workers.
How did the portable benefits debate become about worker classification?
Over the last ten years, gig worker advocates have been trying to force companies like Uber and Doordash to classify their on-demand workforces as employees, granting them all the labor protections and benefits that come with employment. Gig platforms have fought this tooth and nail, arguing that reclassifying all app-based gig workers as employees would undermine not only their profitability, but their very business models.
The platforms offer up portable benefits accounts as a carrot in exchange for the ability to classify their workforces as independent contractors. Some of you might remember the fights in California over AB5, Prop 22, and all the ensuing lawsuits. This is the debate that continues to dominate any public conversation about portable benefits today.
That’s why most of the portable benefits bills moving forward at the state and federal levels are actually bills about worker classification. For example, portable benefits legislation passed in Utah (S.B. 233), Alabama (S.B. 86), Wisconsin (S.B.256), and Tennessee (H.B. 494) with pending legislation in Arkansas (S.B. 235), Hawaii (H.B. 1290), Massachusetts (H. 1108), Nevada (S.B. 336), New Jersey (S.1386), and Rhode Island (H. 5941), and unsuccessful bills failed to advance in Florida (S.B. 1130) and Wisconsin (S.B. 256). Pennsylvania, Georgia, and Maryland have supported pilot programs for DoorDash.
These laws differ in the specifics, but in general, they offer gig companies protections from misclassification lawsuits if they choose to provide platform workers benefits. A few portable benefits laws go further, and require gig platforms to contribute to portable benefits accounts in exchange for protection from misclassification lawsuits. For example, a novel agreement negotiated in Washington State (H.B. 1570) between the Teamsters and Uber & Lyft requires the companies to fund paid leave and unemployment benefits for drivers.
At least a few of these bills will actually expand benefit protections to platform workers. But will any of them help self-employed creative workers access portable, affordable, comprehensive benefits? No.
Most portable benefits bills would not expand coverage for creative gig workers.
Over one third of creative workers are self-employed, but most are legitimate independent workers, combining income across multiple gigs. New laws clarifying the classification status of on-demand platform workers will not impact their lives in any meaningful way.
Unfortunately, many of the portable benefits bills introduced in Congress this year are also focused on classification, allowing employers to offer limited, voluntary benefits on their own terms while avoiding obligations like the minimum wage, overtime pay, unemployment insurance, and collective bargaining rights. For example, the Unlocking Benefits for Independent Workers Act (S. 2210) introduced by Sen. Bill Cassidy (R-LA) creates a legal “safe harbor” for companies to offer benefits to independent contractors without jeopardizing the worker’s independent status. The Modern Worker Security Act (H.R. 1320) introduced by Rep. Tim Scott (R-SC), goes further, codifying an employment test that allows employers to more easily classify workers as contractors and avoid minimum wage and overtime protections built into the Fair Labor Standard Act.
Despite their names, these bills would not meaningfully increase access to affordable, portable coverage for self-employed artists or creative workers.
However, there are some promising federal efforts worth looking into.
Sen. Mark Warner and Rep. Suzan DelBenne have been leaders on portable benefits for some time, and their Portable Benefits for Independent Workers Pilot Program Act (S.1696/H.R.3482) would provide funding to states who want to test out new approaches to portable benefits. One could imagine their program funding lots of local and state initiatives like the ones in Dallas and New York City.
Additionally, two bills introduced as part of Senate Republican’s portable benefits package could increase coverage for creative workers. Sen. Rand Paul’s Association Health Plan Act (S.1847) would allow the self-employed and independent workers to group together to access large-group health insurance, addressing many of the affordability challenges they face on the individual market.
Meanwhile, the Independent Retirement Fairness Act (S.2217) introduced by Sen. Bill Cassidy (R-LA) allows independent workers to participate in retirement savings plans reserved for employees—specifically, Pooled Employer Plans (PEPs) and Simplified Employee Pension (SEP) plans—without affecting their status as non-employees.
Both of these bills help individual creative workers access the large risk pools that are reserved today for employees of large companies. This is a big deal, and, if structured to provide real comprehensive coverage, could be the foundation of affordable, portable benefits in this country.
Finally, Sen. Bernie Sanders (I-VT) introduced the Pensions for All Act (S.2335) which would grant all workers – including the self-employed – access to the same pension plan that federal workers receive. These pensions would supplement Social Security (what some refer to as the OG of portable benefits), which he proposed to expand through his Social Security Expansion Act (S. 393). Together these bills could ensure retirement security for all Americans.
What should artists and creative workers prioritize in the debate over portable benefits?
We should be working together to expand the conversation to include all types of workers who need benefits – including artists and culture bearers! Workers should not have to choose between flexibility and social protections. We all deserve a safety net, no matter how we work.
To be sure, the classification debates are important. Employee classification grants not just access to employer benefits, but our whole suite of labor protections, including minimum wage, overtime, and collective bargaining rights, just to name a few. Some fear that creating benefit systems outside employer-employee relationships could normalize precarious work, undermine union organizing, and dilute labor protections.
But those fears should not stop us from building truly portable benefits for rightly classified independent workers. One might hope for a government that not only debates the issues on the merits, but works together to creatively solve problems. Watching our current partisan hellscape play out in this Congressional hearing on the topic doesn’t inspire much confidence, however.
Which is why it’s on us, as members of the creative sector, to jump into these debates. We should be clarifying when a portable benefits bill helps us, and when it decidedly does not. We should build coalitions with other gig workers to call for the same. And we should demand real solutions, like the ones in Dallas and New York City, from our elected representatives.
It’s time to take back the debate – not just for creative workers, but for all gig workers who need affordable, portable benefits.
What We’re Reading and Viewing
This is what we are enjoying this month!
Artists at Work: Rethinking Policy for Artistic Careers by Joanna Woronkowicz which takes an in-depth look at artists’ careers and the policies we need.
California released its first strategic plan for the creative economy. We were excited to dig into its commitment to workforce development and individual artists’ livelihoods.
NORC at the University of Chicago released the National Survey of Artists: Findings Report to understand and make visible the lives and livelihoods of U.S. artists.
The movie, Good Fortune, explores the gig economy and is on our watch list!
Field Happenings
The Woodman Family Foundation (WFF) has launched its “Housing Stability Grant for Artists” in NYC, offering ~$30,000 over 3 years to visual artists.
In September, Doris Duke Foundation and the DC Jazz Festival hosted Creative Labor, Creative Conditions: A National Convening on Artistic Labor & Advocacy a one-day conference in Washington, D.C.
A great policy win for California! SB 456 passed and was signed by Governor Newsom! The bill removes barriers to artists’ work.
AB1340 gives Uber drivers (~800,000 rideshare workers) the right to collectively bargain!
Ireland passed guaranteed income for artists as a permanent scheme! Following a successful 3-year pilot, this government-funded policy will provide 2,000 artists across Ireland with $1500 per month of no-strings-attached cash.
Thank you for the illuminating discussion and comprehensive survey of the bills that are out there. It's very helpful to disentangle the classification piece of the puzzle from the other elements.
Three things to flag:
First, it's important to understand that association plans are highly controversial for reasons that are unrelated to classification. These plans aren't typically subject to the same level of regulation and in addition to concerns about essential benefit coverage, they are understood to end up driving up premiums for the general ACA market because of the way risk pooling works. That's led expert observers like the Commonwealth Fund to conclude that on balance, expansion of association plans would "likely create greater complexity and cost." For some on the right, that's the appeal of association plans: they undermine the ACA, and undermine efforts to transition toward a public system.
While I don't begrudge an eligible arts business or arts worker choosing an association plan if that's ultimately what they deem necessary to achieve coverage in the current affordability crisis, what association plans ultimately may mean on a structural level is cheaper access for the young and healthy and more expensive premiums for everyone else. That certainly should raise serious equity concerns. So it's important to not confuse a stopgap measure for a medium-long term policy solution.
Second, it's important to be mathematically realistic about what might be achievable, and be serious about evaluating feasibility before settling on campaign goals. A handful of folks in the musician community who are frustrated with low streaming royalties and affordability barriers to health coverage have suggested requiring major labels to pay into portable benefit plans for musicians--not just covering those musicians who record for major labels, but also those whose work they distribute via a licensing relationship. Setting aside the dubious legality of such a scheme, we haven't seen evidence that anyone has been able to make the math work in a way that would end up covering the broad population of recording artists, especially given that even good plans like SAG-AFTRA's for eligible recording artists has to allocate coverage based on earnings thresholds, which leaves a whole lot of people behind. We need to see every artist covered, regardless of whether their work is popular or commercially successful.
Finally, it does make sense to require that companies that are making piles of money off of artists' work contribute more than they are right now to artists' healthcare and wellbeing. But what we've seen internationally suggests that the optimal way to require them to do that is via tax revenues that pay into a single payer system. The best and most portable way of offering benefits to artists is via expanded public coverage. All of our health care discussion about incremental fixes, short and medium term reforms, etc is best understood as embedded in the long-term fight for single payer coverage. We know it's the approach that works, even as it may be a slog to get there.
This was so helpful. Thank you for sharing these resources! I live in California and had no idea about the “Creative Economy” plan.