[Dixielandjazz] Workman's Comp and Independent Contractors

[Steve Barbone]

HI TOM: (Copied to the DJML because it is very relevant to musicians)

Your insurance guy sideman is WRONG. You are not liable to pay workman's
comp for independent contractors.

HERE IS A LITTLE MORE DETAIL.

Independent contractors are not eligible for workman's comp PERIOD. However,
some employers will classify a worker as an independent contractor when in
fact the worker in question more readily fits the definition of a basic
employee. 

If a worker is designated as an independent contractor but is substantially
"controlled" in the conduct of work duties, then the worker is an employee.
What are control issues? Basically, control issues involve:

1) a person's work schedule,

2) whether or not they are trained for job tasks by the employer, and

3) whether or not the performance of their job duties is largely dependent
on resources made available by the employer.

Musicians provide their own resources, such as instruments, transportation,
etc., and we band leaders do not usually "train" the sidemen in the classic
sense. They come to us already trained. The only thing we control is the
schedule for a gig and that is not enough to make the sideman an employee,
being only 1 out of 3.

HOWEVER if a band leader provides workman's comp for them, that raises
another issue. Case in point:

A while back, a venue employing my band, as independent contractors, on a
regular basis said they would be forced to end our relationship unless I
provided workman's comp to the musicians. Wary of taking my own advice, I
consulted with a workman's comp specialist attorney. He said NEVER DO THAT
NO MATTER WHAT. 

Why not? Because that would be strong indicator that the sidemen are really
employees and not independent contractors, regardless of how I classified
them, or even how they classified themselves.

So, I refused the venue's request and explained why. The venue entertainment
director understood and dropped the issue. Had he insisted on Comp, I would
have refused to continue the gig.

Cheers,
Steve Barbone


on 8/29/07 7:11 PM, tduncan at tduncan at bellatlantic.net wrote:

> Thanks, Steve, That is the way I have always handled it, but one of my
> sidemen who spent many years in the insurance business (is that higher or
> lower than a lawyer? :-) insists that we are liable to pay workers comp
> insurance. I think I'll just go along as I have been . . . Don't ask . . .
> Don't tell.
> 
> Regards,
> 
> Tom 
> 
> -----Original Message-----
> From: Steve Barbone
> Sent: Wednesday, August 29, 2007 5:53 PM

> Subject: [Dixielandjazz] Workman's Comp and Independent Contractors
> 
> Dr. Dubious (Tom Duncan) asked about workman's comp and musicians.
> 
> Basically, Independent Contractors are not eligible for Workman's Comp. So
> if you hire independent contractor musicians, give 1099s (or not) etc., you
> need not get involved with it.
> 
> Employees, on the other hand, are eligible for workman's comp. Since Tom,
> you hire independent contractors, don't worry about it.