TN 9 (05-11)
RS 02101.157 Musicians and Orchestra Leaders
A. Introduction for musicians and orchestra leaders
A large segment of the entertainment industry consists of musicians. They work under a wide variety of circumstances, from the self-trained, who band together and furnish music for dances, or other affairs held in their local communities, to the highly skilled professionals who play in symphony orchestras, or in big-name bands. They perform as leaders, conductors, members of orchestras and bands, or as soloists. The soloist performs alone and usually specializes as a singer, or in playing one or more musical instruments. The soloist works under conditions and circumstances similar to variety entertainers. To determine the employment status of soloists, follow the rules applied to such entertainers in RS 02101.252.
B. Employee status of orchestra or band members
Orchestra or band members, except those formed and operated on a cooperative basis, are employees of either the leader of the group, or the purchaser of the music. For development guides, in resolving issues of the identity of the employer, see RS 02101.700.
The employment status of musicians does not affect the fact that an American Federation of Musicians Form B Contract , to which the leader is a party, claims to make the purchaser their employer. The actual relationship, rather than the terms of the contract, is the controlling factor.
C. Independent contractor status of cooperative orchestras
In orchestras operated on a cooperative or partnership basis, all members have a voice to determine the membership, the engagements to accept, how to share the money received, and all other phases of the orchestra's operations. The members consent to designate someone as a leader. The leader’s duties are to act as a representative for the group and to negotiate engagements in the orchestra's name. The proceeds from engagements pay expenses and the members determine how to distribute the remainder of the money. All members, including the leader, of such an orchestra view each other as partners and their work is self-employment, unless the purchaser of the music controls their services, see RS 02101.157E. in this section.
D. Independent contractor status of orchestra leaders
Ordinarily, an orchestra leader is self-employed and the members of the orchestra are employees. The leader selects the members, rehearses and directs them, holds out to the public as being able to furnish a musical organization, and enters into contracts to furnish music. The leader has the primary right to control the orchestra members as to how, when, and where they work. Usually, the leader pays all expenses the orchestra incurs. Quite often, the leader receives a lump sum for an engagement and, after paying expenses and the salaries or hourly wages of the other members, suffers a loss or realizes a profit from the undertaking. The orchestra may be a permanent organization or it may vary in size and personnel depending on when the musicians or engagements are available.
The purchaser of the music deals directly with the leader. The purchaser often does not even know the names of the other members, but may be generally familiar with the type of music they play. The leader may select, rehearse, and direct the playing of the music. The purchaser retains only such control over the leader as to obtain the desired result; that is, the privilege of making suggestions on the type or style of music, number of musicians wanted, etc.
E. Employee status of musicians employed by purchaser of music
Sometimes the owner of a nightclub, restaurant, hotel, dance hall, etc., hires a musician (usually called a union contractor) to assemble an orchestra to play at the owner's establishment. The purchaser specifies the number of musicians, the type of instruments, and the price per musician. The purchaser may accept all of the musicians, or make changes in the personnel with or without an audition. The union contractor may or may not be the orchestra leader. In these situations, the purchaser retains full control over the orchestra and he or she is the employer of the leader and the other musicians.
Occasionally, the purchaser hires cooperative orchestras and others who perform under circumstances that make them, including the leaders, employees of the purchaser of the music. The work relationship is continuing. The purchaser has the right to discharge the leader or any of the orchestra members, to change the style or type of music, to have first call on the services, and to restrict the orchestras’ outside activities. The purchaser generally pays the members on an hourly or time basis and bears the expenses of the orchestra.
F. Weight of factors for musicians
Unions quite often set the hours of work, pay rates, and prescribe rules on fulfilling engagements. Consider such regulations lightly to determine the status of orchestra leaders. The same is true of those factors that exist because of general practices or customs in this field. For example, the musicians usually perform services on the purchaser's premises, the musician owns and uses the instrument, and the purchaser usually sets the time of performance.
The principal factors that generally indicate an employment relationship exists are:
a continuing relationship;
either party can terminate the relationship at any time without liability;
the services are integrated into another business;
payment on a time rather than a job basis;
the leader has no business expenses and investments;
the leader cannot work for others; and
the leader lacks opportunity for profit or risk of loss.