Panel Finds Tour Promoter Must Pay Unemployment Insurance
ALBANY - A prominent promoter of musical tours must pay unemployment insurance assessments to New York state for the shows' musicians despite the promoter's claim that the players are independent contractors and not employees, an appeals court decided Thursday.
Columbia Artists Management exhibited sufficient control over the musicians to be responsible for the unemployment insurance payments on their behalf, an Appellate Division, Third Department panel unanimously ruled in Matter of Columbia Artists Management [Commissioner of Labor], 515768.
The assessments in question totaled $7,613. The state Labor Department said it discovered in an audit that Columbia should have paid for 15 musicians who worked on two touring productions, "Celebrating the Blues," which ran for six weeks in late 2004 and "Broadway! The Big Band Years," which toured for nine weeks in early 2005.
"Celebrating the Blues" starred blues singer Shemekia Copeland and "Broadway! The Big Band Years" featured veteran performer Robin Skye.
The independent contractor status of the stars and the musical directors was not disputed.
According to the ruling, the musical directors came to Columbia with the concepts for the two events. The company developed a touring schedule based on where the shows would sell the most tickets based on their musical genres, provided publicity, travel and accommodations for the players and paid all musicians.
The Third Department said that some aspects of the musicians' relationship with Columbia weighed against their classification as its employees, including the fact the musicians were managed directly by the shows' musical directors, supplied their own clothing and instruments, were responsible for finding replacements if they were absent and got no fringe benefits.
But Justice Leslie Stein (See Profile) wrote that more compelling factors established the employer-employee relationship.
"Most significantly, under the written contracts, Columbia retained the right to ensure the artistic quality of the show by insisting that a performance be changed if it [Columbia] found it to be inappropriate," Stein said. "In addition to retaining broad overall control over the musicians' performances, Columbia retained the right to dismiss any musician for drug or alcohol abuse."
The Third Department panel noted that state courts have also grappled in the past with the employer-employee status of musicians and other entertainers, who "do not lend themselves to direct supervision or control" because of the sometimes erratic nature of their work schedules and employment sites.