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Orchestra Left Without Chair When Music Stops: Another Independent Contractor Misclassification

How independent are musicians who play and perform with others? Do they have more artistic control on their own, or do they only become truly great artists in collaboration with others when their independent talents combine to make incredible music? We suspect David Lee Roth, Sammy Hagar, Richie Sambora, and others who have “gone solo” and played in multiple groups might have interesting opinions on this issue.

However, if you sit up straight as soon as the conductor raises his baton, does that automatically make you an employee? According to the courts and the government, the answer appears to be yes. Beyond musicians, these recent developments can be tied more broadly to the ongoing scrutiny with “employee” versus “independent contractor” classifications.

The United States Court of Appeals for the District of Columbia Circuit has ruled that orchestra musicians are actual employees and not independent contractors, making them free to unionize. The recent decision denied a petition from the Lancaster Symphony Orchestra which challenged the National Labor Relation Board’s (NLRB’s) finding that the musicians were employees of the orchestra in large part because of the control the Orchestra wielded over them. In the underlying decision, the NLRB emphasized the Orchestra’s control over the musicians’ performance, and the appellate court echoed this point by describing the conductor as having “virtually dictatorial authority” over the musicians.

In rendering its decision, the Court reviewed a 10 factor test to evaluate whether the musicians were independent contractors or employees. In focusing on the “control” factor, the Court noted that the orchestra forbids the musicians from doing such things as crossing their legs and requires them to remain “attentive” through a performance. The musicians may not talk during tuning, and one musician reported being reprimanded when she left her seat to talk to another colleague. To be fair, the Court did note that some of the factors leaned in favor of finding the musicians to be independent contractors. However, at the end of the performance, the Court noted the “conflicting evidence” required it to defer to the board and uphold the board’s finding that the musicians were employees.

While one might say that orchestra musicians are unique, and this case could “never apply to me,” think again. The recent decision is yet another example of governmental agencies closely scrutinizing an employer’s classification of its workers as an independent contractor rather than an employee. The NLRB, the U.S. Department of Labor and various agencies of state government are all turning up the heat on employers in all industries who use independent contractors because many employers continue to wrongly believe that simply because a worker is part time or only retained on a temporary basis, he or she can be properly classified as an independent contractor on that factor alone. But courts and government agencies look at a multitude of factors, and in this case control of the performer weighed heavily in finding that the musicians were in fact employees. Employers need to tune up and tune in to what is going on in order to avoid the possibility of significant legal risk.

© 2019 Foley & Lardner LLP

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About this Author

Christina M Kennedy, Employment Attorney, Foley Lardner Law Firm
Senior Counsel

Christina Kennedy is an associate and litigation attorney at Foley & Lardner LLP, where her practice focuses on complex commercial litigation, class and collective actions, and employment litigation. She is a member of the firm’s Business Litigation & Dispute Resolution and Labor & Employment Practices.

Ms. Kennedy has successfully represented clients in all phases of commercial disputes ranging from pre-litigation dispute resolution, litigation or arbitration of complex commercial claims and defenses, and negotiation of favorable...

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