Time of performance and other issues…
Still following along with our conversation? One issue that the Department of Labor likes to press is whether a band leader dictates the time and place of work. If you’re not prepared to have this discussion with a government agency whose coffers are bare, please read on so that you are not caught hemming and hawing…
Why is time and place such a stickler issue?
If you as band leader tell your fellow musicians when they must play (and even where they must play), this is a form of control that the DOL uses to ruling in favor of employee status. This is clearly stated in article VII of revised statute 8-70-115:
[A worker is construed as your employee if you]: “Dictate the time of performance; except that a completion schedule and a range of mutually agreeable work hours may be established.”
That second line is pretty important because it opens the door to defend that you are not controlling time and place. If your IC agreements contain verbiage that the contract will have certain (play out) dates with mutually agreeable hours, you are somewhat covering your butt.
But in addition, you should be aware that the DOL is examining your entire relationship with your sidemen (or contractors). The wording of your agreement could also reflect statements such as:
You, as an independent contractor, are responsible for all hours of performance preparation (rehearsal) on your own time, to be prepared in your own way for the final live performance.
It may seem terribly obvious, but the DOL needs to be reminded (and better in writing) that each of the IC’s is doing a remarkable amount of preparation that far outweighs the ultimate performances.
What else does the DOL examine?
The wording of revised statute 8-70-115 implies that an independent contractor actively pursues this similar line of work (performing live music) with other potential employers. The Colorado Department of Labor has also used an “unwritten” guideline that if your sidemen perform 50% or more of their work with you, then they should be examined more closely for possible reclassification as your employees.
But hold on…you can’t control how hard they are going to work to hustle up other business. You can’t force them to play in other bands, or not be slackers, can you? Of course not! If you could, you would actually be controlling them (and they would logically then be your employees). This is a catch 22 and it completely disregards the spirit of independence of an Independent Contractor .
You’re probably also familiar with businesses that conduct more than one line of work. In the business world, this is referred to as Diversification – not putting all of your eggs in one basket, so to speak. Most musicians and other entertainers understand the importance of this concept and you need to be able to explain it to a less understanding entity – the Colorado Department of Labor.
Many part-time pro musicians have other forms of income that are not directly related to live performance (like recording technician, store salesman, or any of the numerous other day jobs referred to in a previous post).
You should also encourage your sidemen to all establish LLC’s or S-corporations, or at the very least dba’s with business names. This will help lay out your case that you are definitely working with distinct business entities. But one other stickler the DOL might pursue is if your sidemen do not have formal business locations.
In the olden days, especially BtI (Before the Internet), IC’s were scrutinized if they didn’t have obvious business locations. Back then, people commonly took out Yellow Page ads to advertize too. But now, it is increasingly rare for a small business to have a brick and mortar location. High speed internet allows for all kinds of flex businesses…and Google is the new DEX. The DOL simply needs to get caught up with the times, but be prepared if this argument comes up – you’ve been officially warned.
Every band (and live entertainer) situation is a little different. Some bands have one leader – some have none. Some are clearly seasonal contracts while others need a degree of year-round consistency to function. Know that your unique situation could become a convoluted conversation if you are not prepared. Legal counseling is always a good precaution.
Please stay tuned for one last post, a basic check list that every live performer needs to consider…