Harvey Mars is counsel to Local 802. Legal questions from members are welcome. E-mail them to HsmLaborLaw@HarveyMarsAttorney.com. Harvey Mars’s previous articles in this series are archived at www.HarveyMarsAttorney.com. (Click on “Publications & Articles” from the top menu.) Nothing here or in previous articles should be construed as formal legal advice given in the context of an attorney-client relationship.

Paid sick days will be a reality for many New Yorkers, thanks to a new city law. On May 8, by a veto-proof margin of 45 to 3, the City Council voted to enact the Earned Sick Time Act. As of next April 1, the law requires employers with more than 20 workers to provide up to five contiguous paid sick days to those working 120 days or more. The law was absolutely needed because half of New York City workers do not receive any paid sick days – that’s 1.6 million people. The loss of productivity sustained by businesses due to worker illness, exacerbated by employees being forced to work sick, is staggering. The closest law we have on the books right now is the Family Medical Leave Act, a federal statute that grants leave to employees who suffer from a serious medical condition (or who have to care for a family member who suffers). But that leave is unpaid and it’s only provided to employees who work more than 1,250 hours a year in a company that employs more than 50 people. Many workers in New York City do not qualify.

This new sick pay law is extremely good news for musicians and other performing artists, who, as a result of the union’s lobbying efforts, were specifically included within the scope of the law. The first draft of the law didn’t explicitly define musicians as employees, which was quite alarming to us. Less than two weeks before City Council was scheduled to vote on the law, Local 802 went into action. Using all of our contacts, we implored the bill’s chief sponsor – Council Member Gale A. Brewer – and her colleagues to make sure that musicians and performing artists were specifically included within the scope of the term “employee” as defined in the statue.

As a result of this last-minute effort, the Council report now states:

The bill is intended to cover all employees in the State of New York… For instance, musicians and other performers who qualify for unemployment insurance coverage pursuant to the Unemployment Compensation Law or covered by the New York Workers Compensation Law are intended to be employees for purposes of this local law.

Without the addition of this statement in the law’s legislative history, employers would undoubtedly argue that musicians were not employees entitled to sick leave benefits, but were instead unprotected independent contractors. This, in fact, was the case for many years with respect to the New York State Unemployment Compensation Act and New York State Workers Compensation Law, until Local 802 and other entertainment unions lobbied the New York State Legislature to ensure that musicians and other performing artists were covered by the law.

Before those laws were amended, musicians were routinely denied unemployment and workers compensation benefits. We found that former Local 802 President John Glasel had written letters in 1986 and 1989 to Gov. Mario Cuomo imploring him to sign the amendments into law. It is clear that without Local 802’s efforts 30 years ago to amend those state laws, Local 802 would not have been able to achieve our latest milestone with the sick pay law.

While the sick pay law does not become effective until early 2014, it clearly will benefit many employees now, since employers with union agreements that provide comparable sick leave will not be subject to the harsh remedies that will be imposed on employers who violate the statute. This exemption will undoubtedly provide an incentive to employers to enter into collective bargaining agreements.

So how will the sick pay law work for musicians, exactly? See next article for details.

“Musicians work as hard as any worker in any industry, and they need and deserve paid sick leave. Culture and tourism are core economic engines for our city, and when our professional musicians and their families are healthy, our economy is healthier too. I am thrilled to have taken the steps to make sure that musicians and other performing artists were included in the Paid Sick Leave legislation.”
– Council Speaker Christine Quinn

“Approximately one million New Yorkers will now have the fundamental right to a paid day off when they or a family member falls ill, and no worker will be fired if they must stay home including professional musicians who make New York City one of the world’s music and entertainment capitals. This is a tremendous accomplishment of which all fair-minded New Yorkers can be proud…”
– Council Member Gale A. Brewer