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The blurry lines of sidemen musicians

May 28, 2012

Picking up where we left off, convincing the Colorado Department of Labor that your sidemen are independent contractors is a difficult task.  The DOL automatically assumes an employee status unless you can justify IC status.  Even with tight IC agreements in place, every case is unique and the DOL can dig into the nooks and crannies seeking validity for employee status.

For instance, your band might be comprised of you, one other guitarist, bassist and drummer.  You’ve all played together for over a year (already a red flag for the DOL because most IC arrangements are for a year or less), and out of loyalty most of these players are with you for every gig.  But sometimes you need to swap out bass players.  In fact, the bassist might be a revolving door player.  Should the other players be considered employees and the revolving player an IC?

Does that really make sense?  The guitarist and drummer are free to play anytime, anywhere.  To make a living they may need to play in 10 bands (10 different employers!) , or play in just one band for as long as that ride lasts – and as all musicians know…nothing in the music business lasts forever.  And finally, if they say they want to be entrepreneurs, why does the state of Colorado have any business calling them the band leader’s employees?

The answer is that the state looks at all criteria involved with the classification.   They are specifically looking at how much control a band leader exerts over his sidemen.  If control is deemed overwelming, they will probably want to rule in favor of employee status.

For instance, the DOL may ask: do you require your musicians to be at a certain place and time for performance?  The short answer of course is “yes.”  That’s a given for the entertainment industry.  Performance is what live music is all about.  But the DOL can then state that you are controlling your sidemen.

What the state doesn’t immediately take into consideration is that the live performance is not the be-all end-all of the sideman’s contributions – it’s a byproduct of the whole job, just as building a deck is the end result of a construction contractor’s job.  Most people don’t tell the construction worker how to cut the wood, how to level the posts and pour the concrete, etc.  So too with band leaders…

To get to the point of live performances, musicians have practiced scales, perhaps taken private lessons, practiced songs on their own time, in their own place, for many, many hours (that the band leader certainly does not control).  Most sidemen are life-long musicians that have played in many projects and have arrived at their own style of playing over the course of years.

Or as one local musician has suggested, the gig (typically 2-4 hours), is only a small component of a much larger obligation (preparing for the gig).  Preparation and the final event are all part of the contract.  Preparation might include 30 hours of practice (on the sideman’s own time, with his/her own gear, and own practice discretion).  Further, the sideman will probably play multiple gigs throughout the contract with the band leader.

Even further, the gig is not dictated by the band leader so much as by the venue.  A live music venue tells you where you will play, what time, for how long, and you might even use their equipment (PA system) for your performance.  And so the lines between employer, employee and IC become that much blurrier.  But that is not the DOL’s concern.  They are seeking a determination of the band leader’s relationship with his sidemen, period.

Does a sideman ever borrow an amp?  Guitar strings?  Come over to your house to practice?  Do you tell them how they must play their part in a song?  These are all little nuances that the DOL can drill into to disprove IC status.  Plus, the DOL is 1) working with rather archaic statute wording that easily allows them to discount virtually any IC contention and 2) the DOL has an intrinsic motivation to categorize all people as employees – from an ethical and a monetary standpoint.

The federal Employee Misclassification Prevention Act (H.R. 5107/S. 3254) is also fueling these new cases.  This act increases the penalties for misclassification under the FLSA (Fair Labor Standards Act), and requires employers to notify workers of their classification in writing (ideally IC agreements).  It further encourages states to beef up their own penalties for worker misclassification…and the state of Colorado is one of the strictest enforcers of these policies.

Please stay tuned for more discussion about why it is critical for many sidemen to be recognized as Independent Contractors and how you might state your case.

2 Comments leave one →
  1. Randall permalink
    May 29, 2012 5:30 pm

    How does this apply to a group whose members are ‘partners’ under the same LLC?

    • May 30, 2012 4:04 pm

      Thanks for commenting, Randall! LLC’s formed by all of the band mates are generally not that common. You could all be employees, or have everyone sign an independent contractor agreement as “partner members.” This is probably a good way to go for many full time bands if it can increase loyalty amongst the players.

      But part-time professional musicians (sidemen) tend play in several different projects, all with variable time frames. This transient (or journeyman) aspect of sidemen musicians is usually better defined in the form of independent contractor relationships. They are entrepreneurs and free agents.

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