Do You Know About The Ten Point Test For Determining If A Worker Is An Employee Or Independent Contractor?

Pop quiz: do smaller budget orchestras classify musicians as employees or independent contractors? Regardless how you answered, you’re both right and wrong. But that question is beginning to move toward something more straightforward following a recent decision by the District of Columbia Circuit of the U.S. Court of Appeals to uphold a ruling by the National Labor Relations Board (NLRB) that determined musicians of the Lancaster Symphony Orchestra (LSO) were decidedly employees.

Adaptistration People 157Historically, the LSO classified musicians as independent contractors but the roughly $1.5mm budget orchestra entered rough labor waters nearly a decade ago when the musicians sought to be classified as employees in order to unionize. has done an excellent job of following this story since 8/10/2007 when it published an article by Tim Mekeel that reported on what one musician, former concertmaster Sylvia Ahramjian, characterized as a “reign of terror” by the orchestra’s music director, Stephen Gunzenhauser.

Enough of the remaining musicians agreed to such a degree that they decided to unionize in order to secure improved workplace protections. In turn, they petitioned the NLRB to have the American Federation of Musicians (AFM) serve as their bargaining representative.

Fast forward to 2016 and this process crossed what may be the final step with the federal appeals court decision.

Mekeel authored an excellent overview of the most recent chapter in this saga, which was published in the 4/19/2016 edition of In that article, the musicians continue to emphasize their decision to unionize stems from a lack of workplace protections.

At one point in the article, Mekeel references a ten point test the court used to help reach a decision but it doesn’t cover all of the items from that list.

Perhaps unsurprisingly, many of the ten items contain elements that are less than clear cut. Nonetheless, interpreting the law is what courts are all about and when it comes to determining employment status, here are ten items the court will consider:

  1. Extent of control by the employer.
  2. Whether or not the individual is engaged in a distinct occupation or business.
  3. Whether the work is usually done under the direction of the employer or by a specialist without supervision.
  4. Skill required in the occupation.
  5. Whether the employer or individual supplies instrumentalities, tools, and place of work.
  6. Length of time for which individual is employed.
  7. Method of payment.
  8. Whether or not work is part of the regular business of the employer.
  9. Whether or not the parties believe they are creating an independent contractor relationship.
  10. Whether the principal is or is not in the business.
Note: Those of you who enjoy the minutia of labor law are probably jumping to the comment section right now to point out the comparatively new eleventh item to the list “Whether the evidence tends to show that the individual is, in fact, rendering services as an independent business.” Relax, I just mentioned it.

Interestingly enough, since those items were intentionally designed to allow application via what the NLRB describes as “factual circumstances of the particular case,” Mekeel’s article includes some of the court’s feedback on those items as applied to the LSO case.

Given the series of legal challenges surround shared economy businesses, you can expect issues of employment status to remain front and center for the next several years. Consequently, it will be fascinating to see how those cases potentially impact the orchestra field.

About Drew McManus

"I hear that every time you show up to work with an orchestra, people get fired." Those were the first words out of an executive's mouth after her board chair introduced us. That executive is now a dear colleague and friend but the day that consulting contract began with her orchestra, she was convinced I was a hatchet-man brought in by the board to clean house.

I understand where the trepidation comes from as a great deal of my consulting and technology provider work for arts organizations involves due diligence, separating fact from fiction, interpreting spin, as well as performance review and oversight. So yes, sometimes that work results in one or two individuals "aggressively embracing career change" but far more often than not, it reinforces and clarifies exactly what works and why.

In short, it doesn't matter if you know where all the bodies are buried if you can't keep your own clients out of the ground, and I'm fortunate enough to say that for more than 15 years, I've done exactly that for groups of all budget size from Qatar to Kathmandu.

For fun, I write a daily blog about the orchestra business, provide a platform for arts insiders to speak their mind, keep track of what people in this business get paid, help write a satirical cartoon about orchestra life, hack the arts, and love a good coffee drink.

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8 thoughts on “Do You Know About The Ten Point Test For Determining If A Worker Is An Employee Or Independent Contractor?”

    • It’s like you read all of my first drafts when commenting Dave 🙂

      I had a few paragraphs on the shared economy connection and recent Uber rulings but edited them out for a few reasons. One, it is a pretty deep rabbit hole and two, the it seems clear that the intent for these guidelines is to allow courts added flexibility to consider the respective variables; i.e. the whole “factual circumstances of the particular case” language.

      Granted, the argument can be made that this is no more than a legislative punt but regardless the intent, all indications point to less weight on precedent than might otherwise exist.

      • I wonder if a growth in Uber-like arrangements might lead to legislation that would define a middle classification that could allow a balance between employer flexibility and employee protection. It seems like that kind of arrangement might appeal to a lot of orchestras.

  1. Should we open the worm-filled can relating to the classification of independent contractor vs. employee as it relates to workers compensation and GL policies, which in turn cascades into AHA regulations?

    Sometimes how much you end up having to learn to avoid violating law/regulations in small/medium non-profit organizations borders on the absurd.

  2. Regarding Plano Symphony Orchestra,

    It looks like the musicians (originally classified as independent contractors) wanted the right to vote on unionization, but were denied on the the basis of their IC status. The National Labor Relations Board (NLRB) weighed the evidence, reclassified the musicians as employees, and designed an election process.

    Ultimately, the musicians decided not to unionize, but I don’t think that means their employment status automatically reverts to IC, does it?

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