In what appears to be a breakthrough in employment law, the United States Court of Appeals for the District of Columbia Circuit has ruled that orchestra musicians are to be considered actual employees, rather than independent contractors.
This increases an orchestra’s legal obligations to musicians it engages on a regular basis. It also makes it possible for freelance musicians to form a union group.
From the proceedings: 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.
The ramifications are considerable.
See National Law Review here.