NLRB Says Boston Theater Musicians are Misclassified Independent Contractors

A National Labor Relations Board (NLRB)  official recently ruled that theater musicians working for Fiddlehead Theatre Company Inc. in Boston were misclassified independent contractors, but they should be considered employees.

The regional director of NLRB’s Region 1 office, John J. Walsh, said that the misclassified independent contractors are employees based on the stipulations of the National Labor Relations Act, rejecting the arguments put forth by Fiddlehead Theater Company.

The musicians are now able to hold a union representation election as part of a local chapter of the Boston Musicians Association, an affiliate of the American Federation of Musicians as a result of the recent ruling.

“I find that the board has jurisdiction over this matter [and] I also find that the musicians are statutory employees under the NLRA rather than independent contractors,” Walsh ruled.

Fiddlehead Theater Company produces professional theater performance and also provides community theater classes for youth and adults. The company currently has a total of four employees on its payroll.

The company has been responsible for seven stage productions in the last two years, and for each performance, the company has rented a venue and has secured an orchestra and musical theater cast.

Walsh determined that the theater company could not prove its musicians were independent contractors since it exercised a great deal of control over the work of the musicians, including the scheduling of rehearsals and performances.

The timing of these rehearsals and performances were solely determined by the theater company and did not allow musician input.

Musicians that work with Fiddlehead are also required to follow the dress code set forth by the company and they lack the potential for any entrepreneurial gain.

Walsh did agree that some aspects of the musicians’ work did point to independent contractor status, including employment on a show-by-show basis, being paid via a flat fee for their performance, supplying their own instruments and are considered highly skilled workers.

Musicians do not receive any employment benefits and taxes are not withheld from their pay, Walsh noted.

Taking all those factors into consideration, Walsh determined those factors “are not dispositive” and explained that employees can work part time for multiple employers.

“More importantly, in cases involving artistic endeavors, the board has found artists to be statutory employees emphasizing the artists’ lack of artistic control, their lack of significant entrepreneurial discretion, and the fact that they are engaged in the regular business of the employer,” Walsh stated. “Weighing all the factors above, I find that the musicians in the petitioned-for unit are statutory employees.”

Many Employees May be Misclassified Independent Contractors

Employers may have a number of reasons for hiring independent contractors to complete necessary work. However, it is not always legal for them to do so.

Even a worker who signed an agreement with an employer stating her or she is an independent contractor, is paid without taxes being withheld and receives a 1099 form may still be misclassified independent contractors based on court rulings.

If your company controls much of your job including the hours worked and schedule, provides tools, supplies, uniforms or other materials for you to do the job and you think you may be a misclassified independent contractor, an attorney can review your case for free and help you understand your legal options.

The Fiddlehead Misclassified Independent Contractors Lawsuit is In the Matter of: Fiddlehead Theatre Company Inc. and Boston Musicians Association et al., Case No. 01-RC-179597, before the National Labor Relations Board.

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