[Dixielandjazz] Employees or Independent Contractors?

[Kit W. Johnson]

Makes sense, Steve, and I agree with you regarding the "nebulousness" of the
whole area. I think that many times band leaders have an unrecognized risk
in the fact that the musicians don't act like independent contractors
themselves. Often missing are proof points such as invoices, contracts,
business insurance, formal books and records, etc. that give weight to the
argument that the muso is indeed operating as an independent contractor.

Kit W. Johnson
Black Swan Classic Jazz Band
503-292-7673
503-970-1251 (cell)
kit at bscjb.com 
www.bscjb.com 
 
-----Original Message-----
From: dixielandjazz-bounces at ml.islandnet.com
[mailto:dixielandjazz-bounces at ml.islandnet.com] On Behalf Of Steve Barbone
Sent: Tuesday, August 21, 2007 8:08 AM
To: Kit Johnson
Cc: Dixieland Jazz Mailing List
Subject: [Dixielandjazz] Employees or Independent Contractors?

You are right Kit. I explained my view very poorly skimping over the entire
explanation. Hopefully the redo below will clear things up.

IMO, it is the AFM's position that all musicians should attempt to be
classified as free lance "employees" with the requisite benefits of
unemployment insurance, withholding, health benefits, pension benefits, job
security, fair labor standards act protections, etc., etc.

However, it has been the court's (mine too) position via lawsuit decisions,
that most musicians are independent contractors, not free lance "employees".

The "control issue" is a can of worms. Kind of like your hiring a carpenter
to build a porch addition. You tell him what you want, you approve his
detail plans, you choose the color, materials etc., etc., etc. That's total
control of the finished product. And you have the right to tell him exactly
how you want it built. That does not make the carpenter your employee. Same
with most musical jobs. The band leader controls (or should) the tempo, the
style, and if lead sheets/arrangements are used, the notes to be played.
That's total control of the finished product. That does not necessarily make
the musician your employee.

The AFM as a general rule tries to change this by contract and collective
bargaining. In symphony orchestras, and with touring professionals, they
have a measure of success. However, these days, the status of most musicians
is that of independent contractor rather than employee. Especially in the
part time ranks where most musicians currently reside.

Main point I wanted to make is that if you sign a statement that you as a
musician, are an independent contractor and not an employee at the request
of the band leader or venue, it may not necessarily hold up in a lawsuit.
And likewise, same for the "control" issues which are poorly worded by the
IRS statutes. There is a lot of wiggle room for judicial discretion. So
signed statement or not, a judge can do what he wants at crunch time.

Recently, I had a Casino gig in Atlantic City. Four nights a week, for a 15
month run. Band was booked through an agent. Non-Union. The Casino
specifically  told us we were not employees. The agent paid us. They
differentiated us from employees with different name tags. They did not
assign us lockers in the hotel, or a band room. We came in with our
instruments ready to play from the parking garage. Be that as it may, I
believe that if a court case had been brought for some reason (Workman's
comp etc) there would have been a 50/50 chance that we would have been
classified as employees. By the same token, if we had only a one night gig
there, that same lawsuit would probably fail.

In my case, I have a pool of musicians from which I draw. I consider them
independent contractors and neither have anything in writing about it nor
worry about it. Virtually all Philadelphia area musicians are independent
contractors from their own viewpoint. I suspect the same is true nationwide.

Cheers,
Steve Barbone 

"Kit W. Johnson" <kit at bscjb.com> wrote:
 
> Steve: I think you may have misinterpreted the first paragraph of the
> article you submitted. I believe his point is not that most individuals
are
> "free lance independent contractors" as you cite as the basic rule, but
> rather that most individuals are de facto "free lance employees" due to
the
> fact that band leaders or others exercise a great deal of control over
their
> work. Regards. Kit
 
> -----Original Message-----
> On Behalf Of Steve Barbone
> Subject: [Dixielandjazz] MUSICIANS - EMPLOYEES OR INDEPENDENT CONTRACTORS?
> 
>> For those who were concerned recently about employee status, ve.
independent
>> contractor status of musicians in the band. Long, interesting to them,
maybe
>> not to the rest of the list so delete if it bores you.
 
>> Article by Attorney Leonard Leobowitz, AFM-SSD Counsel. He is well
regarded.
 
>> AFM means American Federation of Musicians
>> SSD means Symphonic Services Division
 
>> Note especially that even if your band members sign an "independent
>> contractor" contract, it may not necessarily hold up in a court of law.
>> On the other hand, see the 1st paragraph which states that in most cases,
>> every musician is a free lance independent contractor. That is the basic
>> rule, regardless of how much control the band leader may exert over the
>> music performance of the musician.
 
>> Note also, this article is written by Union Counsel.

>> Remainder snipped


_______________________________________________
To unsubscribe or change your e-mail preferences for the Dixieland Jazz
Mailing list, or to find the online archives, please visit:

http://ml.islandnet.com/mailman/listinfo/dixielandjazz



Dixielandjazz mailing list
Dixielandjazz at ml.islandnet.com