Other Issues Impacting the Performing Arts

On Tuesday, November 22, Judge Amos Mazzant, a federal judge of the U.S. District Court for the Eastern District of Texas, issued a preliminary injunction that temporarily halts the new overtime rules. They will not take effect this Thursday, December 1.

Judge Mazzant's decision follows a lawsuit filed by the governors and attorneys general of 21 states arguing against the Dept. of Labor's authority to implement these rules. The states also argued that the rules would be harmful. The new regulations would increase the salary threshold for employees entitled to overtime compensation to $47,476/year. This threshold would automatically update this threshold every three years beginning in 2020 based on national wage growth.

According to Judge Mazzant, "A preliminary injunction preserves the status quo while the court determines the department's authority to make the final rule as well as the final rule's validity." The judge will hold a hearing soon to consider whether to make this injunction permanent and the Department of Labor is expected to file an appeal.

We are aware that many of you have taken steps to prepare for the implementation of these new regulations and we will keep you updated as we learn more about this situation. We refer you to these resources to learn more about the ruling:

• National Council on Nonprofits: Federal Judge Hits Pause Button on Overtime Rule
• Society for Human Resource Management Blog

On December 1, updates to the Fair Labor Standards Act (FLSA) take effect, increasing the salary threshold for employees entitled to overtime compensation to $47,476/year. The current salary threshold is $23,660/year. Regulations will also automatically update this threshold every three years-beginning in 2020-based on national wage growth.

While the House has passed legislation that supports a phased-in implementation, and there are pending legal challenges to the regulations, it is not expected that this legislation will move through the Senate or find support with the Administration. Employers are strongly urged to prepare for implementation.

To offer guidance, OPERA America and Theatre Communications Group (TCG) have created these helpful resources which discuss implementation of the regulations from the perspective of a nonprofit performing arts organization:

• OPERA America Policy Summary
• TCG Overtime Policy Webinar

Here are additional resources discussing the regulations from the lens of the nonprofit sector:

• Department of Labor Non-profit Fact Sheet and general resources
• Independent Sector overtime regulations resource page
• National Council on Nonprofits resource page

(Photo Credit: Bernard Polet, Flickr Creative Commons)

May 24, 2016

A Letter to the Field,

As is the rest of society, national arts service organizations are working to understand how to be truly relevant to and reflective of our larger society by incorporating the principles of diversity, equity, and inclusion in every aspect of their work. As Chair of the board of the Performing Arts Alliance (PAA) and President and CEO of the Association of Performing Arts Presenters (APAP), I am aware that arts organizations are grappling with understanding the various, often radical, differences in people’s personal experiences and points of view. Organizations feel the urgency to take constructive steps to address how these points of view and experiences impact the artistic work being created, their internal policies, and the services provided to communities.

During the PAA board meeting on the morning of April 26, 2016 our members—leaders of a range of national performing arts organizations—engaged in a facilitated discussion about applying the lens of diversity, equity, and inclusion to our work. We made a commitment to build a common language and understanding around these principles and to intentionally build them into our shared agenda.

Later that day, we attended the meeting of arts service organization leaders hosted by the National Endowment for the Arts (NEA) that included the topic of “Diversity, Inclusivity, and Equity in the Arts.” The troubling remarks made by then head of the National Association for Music Education (NAfME) Michael Butera as accounted by PAA members Keryl McCord of Alternate ROOTS and Jesse Rosen of the League of American Orchestras are a clear reminder that there are still wide gulfs barring mutual understanding and a shared vision of what diversity, equity, and inclusion mean.

The Performing Arts Alliance will continue to have these sensitive and difficult conversations—not just among ourselves, but with other organizations. We invite NAfME, including its staff, board, and new leader Mike Blakeslee, to join us at PAA as we move forward in this dialogue.

Yours,

Mario Garcia Durham

Board Chair, Performing Arts Alliance

The Digital Millennium Copyright Act (DMCA) was signed into law in 1998 under President Clinton as an attempt to update copyright law in accordance with the changing technology of the times. Part of the law, Section 1201, makes it illegal to break digital locks placed on copyrighted material - whether the intended use is legal or not. It’s the act of breaking the lock itself which is illegal. "Breaking" refers to altering an item's code. For example, documentary filmmakers often need to break digital locks to access copyrighted works to legally incorporate them into their films. Also, an artist who may want to use a 3D printer with a material other than the materials the printer was designed to use would have to break a digital lock to do so.

Performing Arts Alliance member Fractured Atlas is working to tell Congress how Section 1201 of the DMCA hinders artists' ability to do their work. Although the DMCA was created with the intention of protecting copyrighted work from piracy, section 1201 doesn't distinguish between pirates and those whose plans for the copyrighted work would not be infringing. Every three years, the Library of Congress reviews petitions for exemptions to this law for people who are prevented by it from making legal uses of copyrighted works. The process is incredibly burdensome, and petitioners have to devote valuable time and resources to filing for this exemption every three years—and they have to make their case from scratch each time. Possible legislative solutions to this problem range from fixing the exemption process to eliminating it altogether.

Learn more about the DMCA:

• What Last Week’s DMCA Exemptions Mean for Artists: Part One (Fractured Atlas, 11.3.15)
• What Last Month’s DMCA Exemptions Mean for Artists: Part Two ( Fractured Atlas, 11.11.15)
• The DMCA is Broken for Filmmakers Like Me (Motherboard, 2.14.16)

(Source: Courtney Duffy (@cduffy90),  Robert W. Deutsch Arts & Technology Policy Fellow at Fractured Atlas and Public Knowledge.)

Image credit: Camera Eye Photography via Flickr

On January 7, the IRS announced that it will withdraw its proposal for a new procedure that would establish a voluntary process for nonprofits to substantiate gifts of $250 or more from individual donors!

The agency received over 38,000 comments from the nonprofit sector opposing the regulations which would have required nonprofits to collect the social security or taxpayer identification numbers of donors. 

PAA alerted you to this issue last month and many of you submitted comments to the IRS about potential administrative burdens to your organizations, concerns for the security of donors' private information, and effects on your relationships with donors. Your voices were heard. Thank you for your advocacy!

This victory is a great way to start 2016. PAA encourages you to join our advocacy efforts this year by continuing to speak up for the arts.

Image credit: Franklin Fischer via Flickr

Submit your comments before the Wednesday, December 16 deadline.

The Internal Revenue Service (IRS) is proposing new regulations that would establish a voluntary process for nonprofits to substantiate gifts of $250 or more from individual donors.

Under this new process, nonprofits could file a voluntary, alternative information return that would require collecting donors' Social Security numbers (SSN) or taxpayer identification numbers (TIN) to substantiate gifts. This form would have to be filed in addition to the organization's 990 and sent to the donor by February 28 of each year for donations received in the previous tax year.

Currently, the IRS requires nonprofits to substantiate gifts of $250 or more by providing donors with written documentation, typically an acknowledgement letter stating the amount of the gift or value of any non-cash item that is donated. Many arts organizations already have a sufficient practice in place to send donors acknowledgement letters for contributions and feel that this additional proposed process--though voluntary--would be unnecessary and cause additional administrative burdens. Here are a few other concerns about this proposal:

• Donors will be less likely to give--or will give less than $250--if they may have to give their SSN or TIN. (The IRS currently advises protecting these numbers from fraud by only providing them when "absolutely necessary.")

• Collecting SSNs and TINs would impose other legal requirements on nonprofits to retain and protect those numbers from identity theft.

• The costs associated with implementing the proposed procedures could otherwise be spent on mission-related activities.

• This process is unnecessary. In its proposal, the IRS states that the current substantiation process "works effectively, with the minimal burden on donors and donees." It also predicts this proposed "donee reporting will be used in an extremely limited number of cases."

PAA will speak up on this issue and submit comments on behalf of its members, however, we want you to make your voices heard! Click the button below to submit your comments directly to the IRS about how this new proposal would affect your organization. The deadline to file is next Wednesday, December 16.

Please keep in mind the following tips:

• Your comments will be available to the public.
• Brief, direct comments are most effective.
• Provide a specific example of how this proposal would impact your organization.

View these tips and resources from the National Council of Nonprofits for submitting comments on the issue.

Image credit: Franklin Fischer via Flickr

The U.S. Department of Labor (DOL) has proposed new rules that would increase the number of employees qualifying for overtime compensation.

The proposed rules would require employers to pay time-and-a-half wages to salaried employees earning up to $50,440 (or $970/week) when they work more than 40 hours per week. This salary threshold is more than double the threshold in current law, which is $23,660 (or $455/week). Currently, salaried employees earning more than that amount are considered exempt, and are not entitled to overtime pay. While there are no specific proposed changes to the “duties test” which describes the white collar exemption for overtime pay, the IRS invited comments on the topic.

Independent Sector--a national coalition of over 500 public charities, foundations, and corporate giving programs--submitted comments on behalf of the nonprofit sector regarding concerns over  the costs of implementing the new rules, while also supporting the general impulse to offer a “living wage.” Independent Sector’s comments urged DOL to consider a phased-in implementation of the new threshold increase, to account for regional economic and marketplace differences, and to host a period for comments should any changes be made to the duties test. PAA is a member of Independent Sector.

The new rules may take effect by mid-2016. In the event that they do become final, arts organizations can prepare now by:

• updating job descriptions to accurately reflect job duties;
• discussing approaches to work schedules and pay rates

We will continue to share information with you as we learn more about the final rules.

(Photo Credit: Bernard Polet, Flickr Creative Commons)

After a wait of nearly three years since a provision was signed into law that would protect musical instruments transported in-cabin, the FAA and DOT have issued final regulations that took effect on March 6. PAA joined more than 25 other national organizations in calling on the FAA to complete the rule-making process, and met with aviation industry leaders to discuss implementation of the new rules.

As the rule-making process is now complete, arts groups plan to continue coordination with the airlines, FAA, and DOT to ensure that individual airline policies and training of personnel are consistent with the new regulations. Both The League of American Orchestras and Chamber Music America published magazine articles outlining the policy changes, and national music groups will continue to update resources to help musicians prepare for travel.

Timeline of activities on Air Travel with Musical Instruments

DOT issued a rule standardizing how airlines treat musical instruments as carryon and checked baggage. This rule comes nearly three years after the Federal Aviation Administration Modernization and Reform Act of 2012 which required DOT to write final rules on the matter. PAA has been working with a coalition of service organizations and musician advocates involved in this important policy issue.

The new rule states that if a traveler’s instrument complies with an airline’s carryon or checked baggage policies—and there is room for the instrument on the flight—airlines must allow it onboard or in cargo. It also states that airlines with musical instrument policies must modify them to comply with the rule and train gate agents, flight crews, and baggage handlers accordingly. Airlines without policies for musical instruments must create them.

The FAA and DOT have announced plans to issue final regulations by the end of 2014. The rulemaking will re-state the statute without interpretation, which means the rule will be issued in final form, not open to public comments.

PAA has joined more than 25 other national organizations in calling on the FAA to complete the rule-making process, and has met with aviation industry leaders to discuss implementation of the new rules. At a meeting earlier this fall, DOT indicated that a rule-making might not be necessary, but quickly reversed its position in favor of a verbatim regulation that would require little expense or effort on the agency’s part. As the rule-making process is completed, arts groups plan to continue coordination with the airlines, FAA, and DOT to ensure that individual airline policies and training of personnel are consistent with the new regulations.

In response to a letter from 35 members of Congress to the Secretary of Transportation urging immediate action, the FAA and DOT arranged a stakeholder meeting on July 9. Participants included PAA, the League of American Orchestras, and Chamber Music America, among other arts representatives. Anthony Foxx, Secretary of Transportation, opened the meeting by pledging action on the regulatory front. The conversation involved productive dialogue among arts participants and representatives from nearly the full array of major commercial and regional airlines. The FAA will convene a follow up meeting this fall and will share a rule-making timeframe for next steps when it releases its agency-wide calendar for FY15 regulatory activity.

As of February 14, two years have passed since a groundbreaking provision was signed into law that would protect musical instruments transported in-cabin on airplanes. However, the Federal Aviation Administration (FAA) has failed to implement the new policies. PAA joined more than 25 other national organizations in a February 3 letter calling on the FAA to complete the rule-making process that it has yet to even begin. Responding to ongoing evidence that musicians’ tools of their trade are often in extreme jeopardy when traveling by air, 35 members of Congress signed onto a February 11 letter to the Secretary of Transportation, urging immediate action. We are grateful to Congressional Arts Caucus Co-Chairs Louise Slaughter (D-NY) and Leonard Lance (R-NJ), as well as Reps. Jim Cooper (D-TN), Howard Coble (R-NC), and Jerrold Nadler (D-NY), who are exercising leadership in this ongoing effort.