DPE's Comments in Support of DOL's Proposed FLSA Employee Classification Rule
December 13, 2022
Amy DeBisschop
Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor, Room S-3502
200 Constitution Avenue NW
Washington, D.C. 20210
Comments on RIN 1235-AA43: Employee or Independent Contractor Classification Under the Fair Labor Standards Act
Dear Ms. DeBisschop,
On behalf of the Department for Professional Employees, AFL-CIO (DPE) and our affiliate unions in the arts, entertainment, and media industries, I write in support of the U.S. Department of Labor’s (DOL) proposed rule on independent contractor classification under the Fair Labor Standards Act (FLSA).
By way of introduction, DPE is a coalition of 24 national unions, 12 of which are unions representing professionals working in the arts, entertainment, and media industries. DPE coordinates activities among these 12 unions, including advocating for shared policy priorities. These unions’ members work as actors, stagehands, craftspeople, choreographers, dancers, directors, musicians, stunt performers, instrumentalists, writers, singers, stage managers, recording artists, broadcasters, audio engineers, photographers, editors, and in many other creative professions. At organizations large and small, they help power a sector of the economy that regularly generates four percent of the United States’ gross domestic product (GDP), creates a positive trade balance, and employs more than five million people.
The members of DPE’s affiliate unions in the arts, entertainment, and media industries are proud that, through collective bargaining, they have helped create a sector where people can work in W-2 jobs that provide family-supporting pay; affordable, quality healthcare; retirement security; and safe working conditions. These standards were not won overnight or handed down benevolently. Rather, they were achieved through years of union creative professionals coming together to earn a fair return on their work as employees. For this reason, DPE and its affiliate unions in the arts, entertainment, and media industries support DOL’s proposed rule on employee/independent contractor classification.
DOL’s proposed six-factor “economic reality” test and its totality-of-the-circumstances approach is critical to ensuring that people who work in the arts, entertainment, and media industries can realize their rights under the FLSA. While popular culture may glamorize the industries in which they work, the vast majority of creative professionals and journalists are like most working people in any other industry; they are employees who depend on finding work in the business of others. A typical creative professional or journalist does not have power over key business decisions, nor do they make capital or entrepreneurial investments in the entities for which they work. They go to work for an employing entity, using their specialized skill in furtherance of that employer’s business, while being precluded from working for others at the same time due to job demands.
What is relatively unique about the arts, entertainment, and media industries is the gig-based nature of employment. Due to the relatively short duration of any one production, performance, or assignment, creative professionals and journalists may have multiple employers throughout a calendar year. Some, such as an actor or stagehand, may even have multiple employers in a single week. However, these individuals are typically not in business for themselves, and the duration of their employment is an inherent feature of the industries in which they work, not a result of creative professionals’ independent business decisions.
The proposed rule provides clarity and focus for workers and businesses alike in the creative industries. In a sector where the work can be seen as a hobby, the clear articulation of who is covered under the FLSA is critical for ensuring that all creative professionals can earn fair pay and benefits. Otherwise, careers in the arts, entertainment, and media industries will be limited to a narrow, non-inclusive set of people fortunate enough to be able to withstand the financial volatility and economic hardship that too often can occur when employers misclassify employees as independent contractors.
For these reasons, DPE and its affiliate unions in the arts, entertainment, and media industries support the implementation of the proposed rule. If you have any questions, please contact me or DPE’s Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
DPE and Affiliated Unions in the Entertainment Industry Urge Congress to Pass the Performing Artist Tax Parity Act
December 6, 2022
Dear Chairman Neal, Chairman Wyden, Ranking Member Brady, and Ranking Member Crapo,
We write to urge inclusion of H.R. 4750/S. 2872, the Performing Artist Tax Parity Act (PATPA), in any year-end tax legislation package that may be put forward in the final weeks of the 117th Congress. Introduced by Reps. Judy Chu (D-CA) and Vern Buchanan (R-FL) in the House and Sens. Mark Warner (D-VA) and Bill Hagerty (R-TN) in the Senate, this bipartisan legislation would update the Qualified Performing Artist (QPA) deduction, modernizing a provision that has been on the books since it was signed into law in the 1980s by President Reagan, so that middle-class entertainment workers can again deduct common business expenses.
Most entertainment workers, including members of our unions, spend 20 to 30 percent of their income on necessary work expenses. Typical expenses might include transportation to an audition, a talent agent and manager, or equipment such as expensive cameras, musical instruments, or tools. An unfortunate and unintended consequence of the last tax reform bill was the elimination of the ability of entertainment workers to deduct these common work expenses. Subsequently, many of our members and other workers in the industry struggle to pay burdensome amounts in taxes, making it difficult for them to make ends meet. Further, these workers face a tax code that punishes them for seeking employment.
PATPA would restore tax fairness for middle class creative professionals by updating the eligibility threshold for the QPA deduction. QPA is a provision of the tax law that allows certain performing artists the option to take an “above the line” deduction for expenses incurred in the course of their employment. Currently, the adjusted gross income threshold for the QPA deduction is $16,000, a level unchanged since QPA’s inception in 1986. PATPA would raise the threshold to $100,000 for single taxpayers and $200,000 for joint filers, and also add a built-in phase out to help transition the taxpayer out of the deduction.
The ability to claim the QPA deduction would have a meaningful impact on the lives of middle-class entertainment workers and their families. According to information from the Volunteer Income Tax Assistance (VITA) program at the Actors’ Equity office in New York, a Pennsylvania sound engineer would realize a tax savings of over $4,500 under PATPA. A Nevada actor would pay $1,500 less in taxes. A New York musician would save $3,000. Instead of paying unnecessarily burdensome tax bills, these middle-class professionals will be able to put their money toward seeking continued work, making the next month’s rent, putting food on the table, and contributing to their local economies.
We urge you to include PATPA in any year-end tax legislation. PATPA will bring much needed tax fairness to hard working Americans who simply want to keep working in the entertainment industry during the challenging COVID recovery period.
If you have any questions, please do not hesitate to contact any of us or DPE Assistant to the President/Legislative Director Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Kate Shindle, President, Actors’ Equity Association
Raymond M Hair, Jr., International President, American Federation of Musicians of the United States and Canada
Raymond Menard, President, American Guild of Musical Artists
Jennifer Dorning, President, Department for Professional Employees, AFL-CIO
Lesli Linka Glatter, President, Directors Guild of America
Carlo Fiorletta, President, Guild of Italian American Actors
Matthew D. Loeb, International President, International Alliance of Theatrical Stage Employees
Richard Lanigan, President, Office and Professional Employees International Union
Fran Drescher, President, Screen Actors Guild - American Federation of Television and Radio Artists
Evan Yionoulis, President, Stage Directors and Choreographers Society
Michael Winship, President, Writers Guild of America, East
DPE Urges the House Judiciary Committee to Support the American Music Fairness Act
December 6, 2022
Support H.R. 4130, the American Music Fairness Act
Dear Representative,
On behalf of the Department for Professional Employees, AFL-CIO (DPE), I urge you to vote yes in support of H.R. 4130, the American Music Fairness Act, at the House Judiciary Committee’s December 7 markup, and to oppose any harmful amendments. This bipartisan legislation would ensure that musicians, singers, and performing artists — including members of DPE’s affiliate unions — are compensated when their songs are played on terrestrial (AM/FM) radio.
Currently, America’s AM/FM stations earn billions of dollars in advertising revenue each year, but do not compensate the performers whose works draw in the audiences that advertisers pay the stations to reach. In addition, because American AM/FM radio stations do not pay for content that musicians and singers record, other countries routinely seize the royalties owed to U.S. performers for works played on their own radio stations.
The American Music Fairness Act would right these wrongs. The bill would require AM/FM stations whose gross annual revenue is greater than $1.5 million — or stations owned by parent companies whose annual revenue tops $10 million — to pay artists and musicians when their songs are played on air. This common-sense legislation also includes broad exemptions and low annual flat fees for smaller stations and public, college, and noncommercial broadcasters, while protecting songwriters by ensuring payments to artists do not come out of their share of royalties. In doing so, the American Music Fairness Act would also ensure that foreign countries pay American artists and musicians when their songs are played abroad.
Now is the time for Congress to close a loophole that prevents creative professionals, including union members, from earning fair compensation when their songs are played on AM/FM radio. Many of these working people went as long as two years without being able to earn money performing live due to the COVID-19 pandemic. Meanwhile, AM/FM stations weathered the pandemic’s economic turmoil by profiting off playing these artists’ musical works.
I urge you to vote yes in support of H.R. 4130 at the House Judiciary Committee’s December 7 markup, and to oppose any harmful amendments.
If you have any questions, please contact me or DPE Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning
DPE's Comments Regarding the 2022 USTR Notorious Markets List
October 13, 2022
Ms. Ariel Gordon
Director for Innovation and Intellectual Property
Office of the United States Trade Representative
600 17th St. NW
Washington, DC 20508
Re: 2022 Review of Notorious Markets for Counterfeiting and Piracy: Comment Request [Docket Number USTR-2022-0010]
Dear Ms. Gordon,
On behalf of the Department for Professional Employees, AFL-CIO (DPE), I write in response to the Office of the United States Trade Representative’s (“USTR”) August 26, 2022, Federal Register notice requesting comments on the 2022 Review of Notorious Markets for Counterfeiting and Piracy.
I commend USTR for using the 2022 Notorious Markets List to examine the impact of online piracy on U.S. workers, an issue directly relevant to the members of DPE’s 12 affiliate unions in the arts, entertainment, and media industries. The members of these unions are actors, choreographers, cinematographers, dancers, directors, editors, musicians, singers, stage managers, stunt performers, technicians, writers, and other creative professionals. They help power a sector that employs more than five million people, generates more than four percent of the United States’ GDP, and produces a positive trade balance.
Online piracy, or content theft, threatens the economic security of many union creative professionals, even though they are not typically the copyright holder. These middle-class workers earn collectively bargained pay and contributions to their health insurance and pension plans from the sales and licensing of the content they help create. In 2021, for instance, Screen Actors Guild - American Federation of Television and Radio Artists (SAG-AFTRA) performers earned $1.11 billion (at an average amount of $229 per residual check), International Alliance of Theatrical Stage Employees (IATSE) behind-the-scenes professionals earned $510 million for their pension and health plan, the Directors Guild of America (DGA) distributed $460 million to directors and directorial team members, and writers, including members of the Writers Guild of America East (WGAE), earned $569 million.
In addition, union creative professionals’ future work opportunities depend on legitimate sales and licensing, particularly in international markets. Illegal downloads and streaming of film and television productions results in the estimated annual loss of at least 230,000 jobs. This job loss occurs because employers, who generally are the rights holders, set their budgets based on their expected return on investment. When copyrighted content is stolen, investment returns diminish, and less money is available to put members of DPE’s unions to work on future projects. Fewer job opportunities also become available as investors lose faith in the ability of countries to adequately enforce copyright protections, which is why U.S. trade agreements must provide strong copyright protections for creative professionals.
Content theft is also an impediment to advancing diversity, equity, and inclusion in creative industries. Too often creative professionals of color, women, and other marginalized individuals are not able to realize the full economic value of their intellectual property, an obstacle to maintaining a career that utilizes their unique talents and abilities. All creative professionals must be able to earn fair pay and benefits, otherwise their industries will be limited to a non-inclusive group of people who can afford to work for little to no compensation as they hold out for the promise of a future payday that may never arrive.
Fortunately, there are actions that USTR can take as part of its worker centric trade policy and the broader Biden-Harris Administration’s pro-worker agenda to protect the wages, benefits, and jobs of the many middle-class creative professionals who depend on the legitimate sales and licensing of creative content.
The United States should not incorporate outdated, overbroad copyright safe harbor language that is modeled after Section 512 of the Digital Millennium Copyright Act into future trade agreements. Section 512, in specified circumstances, frees online platforms from liability for infringing content posted by others. Due to a series of harmful court decisions, Section 512, which was originally intended to create a narrow protection to an infant industry, now provides broad protection against copyright infringement liability to some of the largest, most dominant companies in the world. In essence, Section 512 acts as a nearly free pass for platforms to profit from stolen or otherwise illegitimate content posted by third parties. When U.S. trade agreements include an online safe harbor rule similar to Section 512, they allow stolen or otherwise illegitimate content to proliferate across the globe. Mandating that our trading partners adopt rules that turn a blind eye to stolen and unlicensed copyrighted content on the Internet contributes to DPE unions’ members losing out on the aforementioned collectively bargained royalties, residuals, and contributions to their health care and retirement funds that come from exploitation of the creative works they helped make, along with fewer future job opportunities.
The United States should also not include in trade agreements a provision modeled on Section 230 of the Communications Decency Act, which allows online platforms to avoid responsibility for unlawful user content they themselves facilitated or profit from. Along with content theft, union creative professionals too often experience their voices, images, and likenesses misappropriated for use in unauthorized AI-generated online content. The reality is that AI is rapidly advancing, and society does not fully know the impacts. What is already clear are the dangers and downsides, including image-based sexual abuse, misappropriation for commercial gain, and the proliferation of disinformation using known public figures without their consent. Therefore, inclusion of Section 230-type language in U.S. trade agreements is a mistake that makes it difficult to establish safeguards against content that puts ordinary people, including DPE unions’ members, at risk. Section 230-type language may also prevent the United States and our trading partners from adopting a law similar to Australia’s “payment for news” law. DPE’s unions’ members include journalists and other media professionals whose works giant tech companies profit from, while draining the news industry of its entitled revenue.
The Indo-Pacific Economic Framework (IPEF) provides an immediate opportunity for the United States to pursue policies that will protect and promote the economic security of the more than five million people, including members of DPE’s affiliate unions, who depend on copyright protection to sustain their livelihoods. I refer you to the recommendations included in the Labor Advisory Committee on Trade Policy and Negotiations (LAC) comments responding to USTR’s March 10, 2022, Federal Register notice, Request for Comments on the Proposed Fair and Resilient Trade Pillar of an Indo-Pacific Economic Framework (USTR-2022-0002).
In closing, thank you again for your attention to this important issue. Union creative professionals rely more than ever on adequate and effective copyright protection to secure their livelihoods in today’s digital era. The numerous examples of online markets engaged in content theft and their global reach showcase how stolen content can be transmitted across borders at speeds and in quantities that few could imagine even a decade ago. It is for this reason that I urge USTR to go beyond naming online content theft markets in its Notorious Markets List and to pursue trade policies that address this scourge inflicting economic damage on the middle-class, working people in the creative industries.
If you have any questions, please contact me or DPE’s Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
Statement for the Record for the Senate Immigration Subcommittee's Strengthening Our Workforce and Economy Through Higher Education and Immigration Hearing
June 13, 2022
Dear Chairman Padilla and Ranking Member Cornyn,
On behalf of the 24 national unions in the Department for Professional Employees, AFL-CIO (DPE), I wish to share our perspective on the topic of the Subcommittee’s June 14th hearing, “Strengthening Our Workforce and Economy Through Higher Education and Immigration.”
The hearing topic is directly relevant to DPE’s affiliate unions, which represent over four million professional, technical, and other highly skilled workers. The members of DPE’s unions come from a diverse array of backgrounds, nationalities, and immigration experiences. Within our coalition are U.S. citizens, permanent residents, DACA and TPS beneficiaries, and people working on F, J, H, O, and P nonimmigrant visas. Members of DPE affiliate unions work in nearly every industry, including as faculty and graduate employees at colleges and universities across the country.
Indeed, as the Subcommittee convenes this hearing focused on the higher education field, it is important to remember that colleges and universities are both places of learning and places of employment for international students. International graduate students, including members of DPE’s unions, work on their campuses in various teaching and research roles. Too often higher education employers threaten these international students with the revocation of their visa and deportation if they exercise their workplace rights, including the right to organize as a union and engage in concerted activity.[1] Along with denouncing this egregious employer behavior, we urge the Subcommittee to support reforms to relevant F-1 and J-1 regulations that have been used by colleges and universities to create doubt or fear on the part of international graduate employees engaging in protected labor activity. These regulations should be clarified to make clear that labor protests, including strikes, are protected and would not be grounds under either regulation for any adverse action either from an employer, sponsor organization, or the government.
Support for high-road immigration policies that empower professionals
DPE has long advocated for fundamental reforms to the U.S. immigration system to ensure enforceable workers’ rights and labor standards in any visa program affecting professionals. We oppose low-road immigration policies that benefit corporate interests by allowing differential treatment of workers as a source of cheap labor, and we support smart policies that ensure all working people can earn a fair return on their work. DPE’s guiding belief is that U.S. immigration policies must work for professionals, and not just employers.
The Keep STEM Talent Act is legislation that meets the mark as a high-road approach to attracting and retaining international talent. Reintroduced in the Senate this year by Judiciary Committee Chairman Durbin, along with members of this Subcommittee, including Chairman Padilla, Senator Blumenthal, Senator Klobuchar, and Senator Hirono, this legislation enables talented graduates from U.S. colleges and universities to continue contributing to the American economy while ensuring that they can earn a fair return on their work. Under this legislation, international graduates who earn STEM advanced degrees from American universities are exempt from the annual green card caps so long as their employers receive approved labor certifications and pay them above the median wage level for the occupation and geographic area. The Keep STEM Talent Act offers in-demand graduates a direct path to permanence, rather than forcing them to accept precarious, temporary visas. This approach reinforces the professionalism of the STEM workforce and affords individuals agency in the labor market. DPE is proud to support the Keep STEM Talent Act and urges the Subcommittee to take up this legislation as a way to retain international graduates in the United States.
DPE’s commitment to a high-road immigration system is also why we advocate for policies that empower professionals, including a path to citizenship for recipients of TPS (Temporary Protected Status,) DACA (Deferred Action for Childhood Arrivals) and DED (Deferred Enforced Departure). DPE supports allowing professionals to self-petition for permanent status and providing labor market mobility to individuals with approved I-140s. DPE also advocates for prohibitions on “breach fees,” the far too common practice of employers requiring employees to sign one-sided contracts with enormous financial penalties that effectively bind these professionals to their jobs in exchange for sponsoring them for permanent status. DPE believes the Subcommittee should pursue these reforms so that the world’s talent will feel certain that they will not face employer coercion if they come to work in the United States.
The need for improved tracking of the education to workforce pipeline
DPE also supports improvements to tracking the education to workforce pipeline. Underpinning any conversation on recruiting workers from abroad is the question of the supply of available, qualified professionals in the United States. This Subcommittee, and the Congress as a whole, should have the most accurate statistical picture possible. It is not enough to take the corporate lobby at its word. DPE has watched in recent years too many employers, including in higher education, claim they cannot find qualified workers, only to layoff their employees, including members of our unions, and require them to train their foreign replacements as a condition for their severance.
While federal and state efforts have made strides to better track the education to workforce pipeline, Congress can and should take concrete steps to improve STEM education and workforce research and data and to assist workers, employers, and educators make informed decisions.[2] Currently, national surveys by the Census Bureau (Community Population Survey) and Bureau of Labor Statistics (Occupational Employment Statistics Survey) are the basis for identifying education and occupation trends. The surveys provide valuable and suitable information for a variety of purposes, but the data produced does not effectively identify state, regional, and national trends for STEM education and the STEM workforce.
Unemployment Insurance (UI) wage records, which are filed on a quarterly basis by employers, provide a picture of industry employment and separations, hours worked, and wages. However, UI records are currently a missed opportunity to capture accurate and dynamic occupational data. Done correctly, the inclusion of occupational data in UI wage records would give policymakers, education systems, and all stakeholders insight to national, regional, and local labor markets. Enhanced UI wage records could connect credentials and training to specific occupations and provide career mapping information over the course of changes and shifts to the economy.
Following the recommendations of the U.S. Department of Labor’s Workforce Information Advisory Council, Congress should commit the federal government to pursuing a phased-in, well-managed, and properly funded process for collecting and analyzing high-quality occupation data via states’ UI systems’ wage records. This policy commitment should be supported with increased funding for research and IT needs at the various state agencies performing education and workforce analysis. Finally, the benefit of overhauling and aligning UI records to provide occupational data should be articulated to the business community, education systems, and workers and students in the education-to-workforce pipeline and/or career transition.[3]
In closing, any effort to strengthen the country’s workforce and economy through immigration must start by providing a pathway to citizenship for recipients of DACA, TPS, and DED. These hard-working individuals are our family members, neighbors, and coworkers, and they have already been here making positive contributions to our communities for decades. If Congress wants to recruit and retain the world’s talent, it must understand the need and identify ways to ensure that all professionals, regardless of immigration status, can earn fair, family-supporting pay in an environment free from exploitation. That means pursuing a high-road approach to immigration that puts working people first by lifting wages, promoting worker empowerment, and ensuring that they can exercise their workplace rights free of retaliation or coercion. DPE stands ready to work with the Subcommittee to pass immigration reform that achieves these necessary outcomes.
If you have any questions, please contact DPE Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
[1] See, e.g., Washington University in St. Louis, Case 14-CA-202172, NLRB Advice Memorandum dated Oct. 31, 2017 (noting the tension between the regulation and labor law); Bill Shackner, Is fear over visa status being used to derail Penn State unionization effort? (Pittsburgh Post-Gazette, Apr. 12, 2018).
[2] For an example of existing federal-state efforts in improve education data and analysis of education outcomes, see Statewide Longitudinal Data Systems Grant Program administered by the Department of Education's National Center of Educational Statistics, https://nces.ed.gov/programs/slds/grant_information.asp.
[3] DOL Workforce Information Advisory Council, Recommendations to Improve the Nation's Workforce and Labor Market Information System, Jan. 2018, https://www.doleta.gov/wioa/wiac/docs/WIAC_Recommendations_Report_2018-01-25_Final_and_Signed.pdf. Legislative text for including occupational information in UI wage records can be found in: U.S. Senate Proposed legislation: S. 1269, Trade Facilitation and Trade Enforcement Act of 2015, Section 913. Improved collection and use of labor market information, 114th Congress, S. Rept. 114-45, (May 13, 2015).
Statement for the Record in Support of NEA and NEH Funding, Creation of Chief Diversity Officers
June 6, 2022
Dear Chairwoman Pingree and Ranking Member Joyce,
On behalf of the Department for Professional Employees, AFL-CIO (DPE), I write in support of funding the National Endowment for the Arts (NEA) and the National Endowment for the Humanities (NEH) at $204 million each in fiscal year (FY) 2023.
Many members of DPE’s affiliate unions in the arts, entertainment, and media industries earn their living working on NEA and NEH-supported productions, programs, and performances. Still more union creative professionals who work now in the commercial parts of these industries benefited from the nonprofit arts and media sector’s role as a proving ground for establishing their lifelong careers.
Funding the NEA and NEH at $204 million each will ensure that the agencies can continue to support good-paying, family-supporting jobs in every state and congressional district for creative professionals, including the members of DPE’s unions. Through grants, seed money, and technical support, the two agencies help put these people to work on artistic and educational content that is available to Americans of all means, geographies, and abilities. NEA and NEH-funded programs help veterans heal from the invisible scars of war, inspire the next generation of creators and innovators, and deliver content that unites people across small towns and big cities. Increasing the NEA and NEH annual funding level to $204 million in FY 2023 is also an important step toward a historical full funding level of $331 million, or $1 per capita.
Additional NEA and NEH funding will help creative professionals quickly return to work safely following the COVID-19 pandemic’s economic devastation. Creative professionals were among the first to lose their jobs at the pandemic’s outset, and they have been among the last to return to their jobs.
Increased funding for the NEA and NEH is also good for local communities and the small businesses that are still recovering from the pandemic. Pre-pandemic research shows that audiences spend an estimated $31.47 per person, per event, beyond the cost of admission, on lodging, restaurants, clothing, transportation, and other goods and services.
In addition, DPE believes the NEA and NEH are critical to advancing diversity, equity, and inclusion in the arts, entertainment, and media industries. In February 2021, DPE and our affiliate unions in these industries released a “Policy Agenda for Advancing Diversity, Equity, and Inclusion in the Arts, Entertainment, and Media Industries,” which contains policy solutions aimed at creating diverse talent pipelines and incentivizing diversity in hiring. Equity and inclusion are essential, not only as a matter of doing what is right, but also for the long-term sustainability of the creative sector.
In sum, the NEA and NEH are critical agencies for working people and local economies. Their work delivers a high return on investment and cannot be replaced by the private sector. I urge the Subcommittee to fund the NEA and NEH at $204 million and help sustain America’s continued recovery from the COVID-19 pandemic.
If you have any questions, please contact DPE Assistant to the President/Legislative Director, Michael Wasser, at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
Statement for the Record for the House Committee on the Judiciary's Respecting Artists with the American Music Fairness Act Hearing
February 1, 2022
Dear Chairman Nadler and Ranking Member Jordan,
On behalf of the Department for Professional Employees, AFL-CIO (DPE), I wish to share our perspective on “Respecting Artists with the American Music Fairness Act.” Thank you for holding this important hearing.
By way of introduction, DPE is a coalition of 24 national unions, 12 of which are unions representing professionals working in the arts, entertainment, and media industries. Two of these unions - the American Federation of Musicians (AFM) and the Screen Actors Guild - American Federation of Television and Radio Artists (SAG-AFTRA) - include musicians, singers, and recording artists as members. I am thrilled that the Committee will have an opportunity to hear directly from two of these union members during this important hearing: AFM Local 257 President Dave Pomeroy and SAG-AFTRA member Gloria Estefan.
DPE stands in strong support of the American Music Fairness Act (AMFA). This bipartisan legislation would ensure that performers, including members of DPE’s affiliate unions like Mr. Pomeroy and Ms. Estefan, are compensated when their songs are played on terrestrial (AM/FM) radio.
The simple truth is that American terrestrial radio stations pad their profits at the expense of music professionals. Station owners earn billions in advertising revenue each year while not paying the performers whose music is responsible for the audiences undergirding terrestrial radio’s business model. The AMFA would right this wrong by ensuring performers can earn a fair return for their work.
The AMFA would also ensure that foreign countries pay American artists and musicians when their songs are played abroad. Currently, other countries regularly seize the royalties owed to U.S. performers because American terrestrial radio stations are not required to pay artists for music performances. Passing the AMFA therefore will also provide U.S. performers access to hundreds of millions of U.S. dollars in payments from outside the United States.
As the United States continues to recover from the worst of the COVID-19 pandemic’s economic impact, there is an urgent need for Congress to ensure that performers are paid when their works are played on terrestrial radio here and abroad. Due to their work occurring in venues requiring close personal contact, nearly all artists and musicians were unable to earn money performing live since the start of the COVID-19 pandemic in March 2020 until very recently. Even then, the surge of the latest variant has caused an increasing number of live events to be postponed or cancelled. All the while, terrestrial radio stations have weathered the pandemic and ensuing variants by profiting off the playing of these creative professionals’ musical works. This inequity can and must be fixed.
It is for these reasons that I urge the House Judiciary Committee to approve the AMFA expeditiously and send it to the House floor for final passage. Now is the time for Congress to close a loophole that has prevented union creative professionals from earning fair compensation when their songs are played on terrestrial radio.
If you have any questions, please contact DPE Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
Letter to House and Senate Appropriators on FY22 Funding for the NEA, NEH, and CPB
January 20, 2022
Dear Chairwoman DeLauro, Chairman Leahy, Ranking Member Granger, and Vice Chairman Shelby,
I write to convey the urgency of passing a Fiscal Year (FY) 2022 appropriations bill that funds the National Endowment for the Arts (NEA) and the National Endowment for Humanities (NEH) at $201 million each and the Corporation for Public Broadcasting (CPB) at $565 million. These funding levels were passed by the U.S. House of Representatives in July 2021.
Many union creative professionals earn their living working on nonprofit productions and in performances that receive funding from the NEA, NEH, and CPB. As such, passing a government spending bill with federal arts funding at the above stated levels is a priority for the Department for Professional Employees, AFL-CIO (DPE) and our 12 affiliate unions that represent professionals working in the arts, entertainment, and media industries.
Funding the NEA and NEH at $201 million and CPB at $565 million means that these agencies can reach more Americans with their vital missions. Through grants, seed money, and technical support, the NEA, NEH, and CPB ensure that Americans of all means, geographies, and abilities have access to artistic and educational content. NEA, NEH, and CPB-funded programs help veterans heal from the invisible scars of war, inspire the next generation of creators and innovators, and deliver content that unites people across small towns and big cities. In addition, the nonprofit arts sector is a proving ground where people wanting to work in the commercial parts of the arts, entertainment, and media industries can establish their careers.
Increased NEA, NEH, and CPB funding will also allow the agencies to help support more jobs for more people in every congressional district. That is because the nonprofit arts community helps power a sector that supports over five million jobs, including, as previously noted, jobs for many of our members. These funding levels are also an important step toward restoring the NEA to an inflation-adjusted full funding level of $331 million, or $1 per capita.
This is a critical moment for helping ensure that creative professionals can get back to work in the wake of the economic devastation caused by the COVID-19 pandemic. The CARES Act and American Rescue Plan helped creative professionals get through the worst of the pandemic, and allowed them to start to get back on stage and return to sets, but the reality is that industry employment remains below pre-pandemic levels. Increased NEA, NEH, and CPB funding will help ensure that professionals working in the arts and public media can fully recover from the pandemic.
Passing an FY 2022 appropriations bill with increased funding for the NEA, NEH, and CPB will also help the economy as a whole continue to recover from the COVID-19 pandemic. Arts audiences spend an estimated $31.47 per person, per event, beyond the cost of admission, on lodging, restaurants, clothing, transportation, and other goods and services - the type of establishments that need the draw of more customers to their doorsteps.
In sum, increased funding for the NEA, NEH, and CPB is an investment that helps union creative professionals earn a living, while enriching the lives of everyday Americans and bolstering local economies. It is for this reason that I ask you to pass an FY22 appropriations bill that provides the NEA and NEH with $201 million in funding and the CPB with $565 million in funding.
If you have any questions, please contact DPE Assistant to the President/Legislative Director Michael Wasser at mwasser@dpeaflcio.org
Sincerely,
Jennifer Dorning, President
Statement for Record for House Committee on Small Business' The Power, Peril, and Promise of the Creative Economy Hearing
January 19, 2022
Dear Chairwoman Velázquez and Ranking Member Luetkemeyer,
On behalf of the Department for Professional Employees, AFL-CIO (DPE), I wish to share our perspective on the “power, peril, and promise” of the creative economy.
By way of introduction, DPE is a coalition of 24 national unions, 12 of which are unions representing professionals working in the arts, entertainment, and media industries. DPE coordinates activities among these 12 unions, including advocating for shared policy priorities. These unions’ members work in nearly every part of the creative economy - from the bright lights of Broadway to the regional theaters of the Midwest to the soundstages of Hollywood, and the big cities and small towns in between. They are actors, camera operators, cinematographers, costumers, craftspeople, choreographers, dancers, directors, editors, instrumentalists, make-up artists, musicians, performers, stagehands, variety artists, writers, singers, stage managers, and many other professions.
Union creative professionals help power the creative sector, which is responsible for more than 5 million jobs, over four percent of the United States’ GDP, and a positive trade balance. In addition, the creative economy has a positive economic spillover effect for local economies. Research indicates that audiences spend an estimated $31.47 per person, per event, beyond the cost of admission, on lodging, restaurants, clothing, transportation, and other goods and services. Indeed, many of these establishments benefiting from the extra audience spending are likely to be small businesses.
The members of DPE’s affiliate unions in the arts, entertainment, and media industries are also proud that, through collective bargaining, they have helped create a sector where people can work in W-2 jobs that provide family-supporting pay; affordable, quality healthcare; retirement security; and safe working conditions. These standards were not won overnight or handed down benevolently, but, rather, they were achieved through years of creative professionals coming together to earn a fair return on their work. Which is why Congress must strengthen and promote worker protections, including the right to organize and collectively bargain with employers.
While the creative sector is typically an economic powerhouse, the reality is that the COVID-19 pandemic caused economic devastation. Most creative professionals work in public venues and on job sites requiring close personal contact. Some continued to work during the pandemic. However, the majority of creative professionals were among the first to lose their jobs at the pandemic’s outset, and they have been among the last to return to work. During this surge of the latest variant, an increasing number of live events have been cancelled or postponed, thereby keeping many creative professionals out of work.
The CARES Act and the American Rescue Plan were invaluable lifelines for union creative professionals, helping them to weather the worst of the pandemic. In particular, I wish to thank the House Small Business Committee for passing policies that helped union creative professionals impacted by the COVID-19 pandemic. Expanding the Paycheck Protection Program (PPP) to labor unions impacted by the pandemic ensured that unions could keep their employees on the job providing critical member services. Throughout the pandemic, despite declining and sometimes no revenue, DPE’s affiliate unions committed resources, including staff time, to ensuring that their members could navigate complex state unemployment systems, find rental and mortgage payment assistance, and have access to basic mental health services, among other support functions. DPE’s affiliate unions also continued to negotiate collective bargaining agreements and work with employers on plans for members to safely return to work.
Looking forward, there are meaningful actions Congress can take to help the creative sector continue to recover from the economic impact of the COVID-19 pandemic and resume its positive impact on the American economy.
Congress should pass H.R. 4750, the Performing Artist Tax Parity Act (PATPA). Introduced by Reps. Judy Chu (D-CA) and Vern Buchanan (R-FL), this bipartisan legislation would update the Qualified Performing Artist (QPA) deduction to correct an unintended consequence of tax reform that has caused a drastic tax increase for middle class creative professionals. QPA is a provision of the tax law that allows certain performing artists the option to take an “above the line” deduction for expenses incurred in the course of their employment. Modernizing this deduction will help low-income and middle-class creative professionals seek employment.
Congress should also pass a Fiscal Year (FY) 2022 appropriations bill that funds the National Endowment for the Arts (NEA) and the National Endowment for Humanities (NEH) at $201 million each and the Corporation for Public Broadcasting (CPB) at $565 million. Many union creative professionals earn their living working on nonprofit productions and in performances that receive funding from the NEA, NEH, and CPB. Through grants, seed money, and technical support, these agencies help ensure that Americans of all means, geographies, and abilities have access to artistic and educational content. NEA, NEH, and CPB-funded programs help veterans heal from the invisible scars of war, inspire the next generation of creators and innovators, and deliver content that unites people across small towns and big cities. In addition, the nonprofit arts sector is a proving ground where people wanting to work in the commercial parts of the arts, entertainment, and media industries can establish their careers. These funding levels are also an important step toward restoring the NEA to an inflation-adjusted full funding level of $331 million, or $1 per capita.
DPE and our affiliate unions in the arts, entertainment, and media industries believe now is also the time for smart policies that can aid our ongoing pursuit of a more diverse, representative creative sector. Enclosed is our “Policy Agenda for Advancing Diversity, Equity, and Inclusion in the Arts, Entertainment, and Media Industries,” which contains policy solutions aimed at creating diverse talent pipelines, incentivizing diversity in hiring, and supporting collective bargaining that will help our workplaces and the creative industries move forward. Equity and inclusion are essential, not only as a matter of doing what is right, but also for the long-term sustainability of the creative sector, which is why we are committed to pushing the arts, entertainment, and media industries to create more and better jobs for underrepresented people.
In closing, the creative sector is a source of pride for America, both culturally and economically. Creative industries bring Americans together and put them to work in good-paying, family-supporting jobs. DPE’s affiliate unions in the arts, entertainment, and media industries are proud of their members’ contributions to the sector’s success. I again thank the Committee for holding this important hearing, and urge its members to recognize that policies supporting creative professionals benefit the sector and the economy as a whole.
If you have any questions, please contact DPE Assistant to the President/Legislative Director, Michael Wasser, at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President
Attachment: Policy Agenda for Advancing Diversity, Equity, and Inclusion in the Arts, Entertainment, and Media Industries