John O’Connor

The state doesn’t seem to care that musicians are being misclassified as independent contractors. We’re going to change that…

Local 802 has consistently championed the cause of fighting misclassification of musicians as independent contractors. But even though there is strong defining language in the New York State code that specifically strengthens the argument that musicians are employees, the violation of this law is rampant in the music industry. It’s an ongoing problem the union is continually facing. Unfortunately, though the state recognizes musicians as employees, it does not specify who the employer is in any given situation, and in the freelance field the state has done little to enforce the law in this regard.

For the union, the issue of who the employer is can be complex. Entertainment establishments – such as nightclubs, restaurants and concert venues – continually skirt their responsibility as the employer by assuming that this status belongs to the agency, bandleader or the artist – anyone, so long as it is not them. But as much as the clubowners want the bandleader to be the employer, they do not ordinarily compensate the bandleader for this cost. As a result, musicians in this line of work, more often than not, get paid on a cash basis and receive no statutory benefits, unless they claim themselves as independent contractors when they file their taxes, a costly proposition because the musician must pay the employer’s portion of FICA taxes. In short, musicians are being ripped off illegally on a very large scale, and no one in state government is doing anything about it.

It’s not for lack of being informed. The union has contacted both the attorney general’s office and the Department of Labor at least twice over the past three years on what we have observed in various parts of the freelance music business. We’ve seen broad violations in both the Jewish club date field and at the Resorts World Casino at the Aqueduct Racetrack in Queens. But the state has yet to conduct an investigation, to our knowledge. It may be because no individual musician has made a complaint. This is possible – musicians may be ignorant of the law, or they may fear reprisals if they speak up. But if the state already knows about widespread abuse, why should an investigation require an individual complaint?

In the nightclub world, it is expected by the great majority of musicians that any work will be paid off the books. Musicians know they will have to pay into social security themselves. It’s an imperfect world and musicians will take work where they can get it, regardless of whether or not they are misclassified as independent contractors. In fact, some musicians prefer to be treated as independent contractors because they are ignorant or misinformed about the downsides of being misclassified. Most notably, there are countless examples of musicians reaching retirement age with little available to them in social security income because they hadn’t been treated as employees for most of their career and no money went into their social security accounts.

At the Resorts World Casino at the Aqueduct Racetrack in Queens, hundreds of musicians are hired to play. However, the owner refuses to follow the law and pay musicians as employees. Instead, musicians are misclassified as independent contractors, which can cost musicians thousands of dollars in taxes and make it much harder to earn social security.

The union has little interest in having the burden of employer responsibility put on bandleaders in the nightclub scene. The employer responsibility should be with those who profit from using musical entertainment to bring in customers. Very few clubs or concert venues worry about whether musicians who play in their establishments will get the protections and benefits due to them under the law. The widespread culture of paying musicians off the books means that the goal of getting nightclubs and restaurants to act as the employer is likely unreachable anytime soon.

We have a better chance of seeing compliance under the law with large institutions that use the services of musicians on a regular basis. Most recently, through our organizing efforts at the Resorts World Casino in Queens, we have discovered that hundreds of musicians play at this very profitable gaming room without being paid as employees. In our meetings with Resorts World, managers have repeatedly said that their “business model” does not include treating the musicians as employees. Instead, they hire most of their musicians through booking agencies that do not pay on W-2s. As such, Resorts World is contributing to a situation in which the law is being broken almost on a daily basis.

Resorts World needs to be held accountable. The state of New York has given a corporation that is connected with Genting Group (Resorts World’s owner) a huge bonanza by awarding it a license to open other casinos upstate.

And yet, the corporation is side-stepping the law by supporting booking agencies that misclassify musicians as independent contractors. Should the state be concerned about this? It doesn’t appear to be a priority. It’s up to Local 802 to make this an issue, take our concerns to the public, and create pressure on both the Genting Group and the state. That’s what we plan to do.

In the next couple of months, Local 802 will be demonstrating at Resorts World and will be calling on elected officials and our brothers and sisters in the labor movement to support our efforts to uphold area standards. Last year, service workers at Resorts World, through their union’s efforts, were justly rewarded with substantial pay increases to ensure that they can earn a living wage. Why should musicians be treated differently? Other workers at Resorts World are treated with the dignity and the respect that state employment law and a union contract can provide. It should be no less for musicians.

Guitarist, singer-songwriter and poet John O’Connor is the recording vice president of Local 802, and the supervisor of the union’s organizing, jazz and single engagement departments.