A recent trial helps illustrate this. In Lancaster Symphony Orchestra v. NLRB, 822 F.3d 563, (D.C. Cir. 2016), the court examined a number of divided factors as to whether the orchestra`s musicians were properly classified as employees or independent contractors.  This morning I called my mother to tell her about my victory. She reminded me (like my father in her email last night) that my fellow musicians might be furious about losing their Schedule C prints if they were reclassified with me. That`s a fair point, so I`ll conclude with: musician in the Lancaster (Pa.) Symphony Orchestra (LSO) are employees and not independent contractors, and so they can be unionized, the U.S. Court of Appeals for the Circuit D.C ruled in a recent opinion and upheld a decision of the National Labor Relations Board (NLRB). In addition, about two years ago, the National Labor Relations Board found that the independent musicians employed by the Lancaster (Pennsylvania) Symphony were employees empowered to organize and elect union representation.
The music director`s control over the orchestra`s musicians was large enough to predominate any factor indicating that the musicians were independent contractors, such as their security time. After the adoption of AB-5, independent musicians face legal and economic challenges to stay in California. Recording executives fear that independent musicians, who are making the pipeline of musical talent to their labels, are fleeing California to states where labor laws are more liberal. In the absence of future legislation that limits the scope of AB-5 or completely frees musicians, California`s role as a hub for independent music could be threatened. While all the different factors must be considered, in almost all cases the most important factor is whether the party practising the services is or has the right to practice, monitor, direct or control a person who hires them. In the case of musicians and other performers, do you hire them to play and play their own music as they want? Or are you running it? Do you need to participate in rehearsals? Can they wear what they want, or do you need some costumes or clothes? In general, musicians or other performers paid to perform and tell them what to do, how they should perform, where they should perform and what they should wear, are almost always considered “collaborators,” if not by the federal government, and then by most national governments.