Amends the definition of employee in reference to professional musicians and those engaged in the performing arts.
Ayes (59): Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Dilan, Farley, Felder, Flanagan, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, O'Mara, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousins, Tkaczyk, Valesky, Young, Zeldin
Excused (2): Diaz, Espaillat
TITLE OF BILL: An act to amend the workers' compensation law, relating to the definition of employee
PURPOSE: This bill would amend Section 2(4) of the Workers' Compensation Law, to clarify that a musician or other performing artist who is exempt from the requirement to have workers' compensation insurance because he or she is an executive officer of a corporation who is deemed excluded from coverage under section 54(6)(c) or section 54(6)(e) of this chapter is not an "employee" of the television or radio station, production company, or venue of the performance.
SUMMARY OF PROVISIONS: Amends WCL § 2(4) to clarify that performing artists who are employed as corporate executives of their own corporations, and whose corporations enter into contracts with theaters or other venues to provide their services, and who would not be found to be employees of the theater or other venue under traditional common law principles that are utilized to determine employment status in workers compensation proceedings, are subject to the same exemption from the requirement to be covered by workers compensation insurance as any other corporate executive who is the sole owner of the corporation, or one of only two such owners.
EXISTING LAW: In 1986, section 2(4) of the WCL was amended to define "employee" as including, for purposes of the WCL: "a professional musician or a person otherwise engaged in the performing arts who performs services as such for a television or radio station or network, a film production, a theatre, hotel, restaurant, night club or similar establishment unless, by written contract, such musician or person is stipulated to be an employee of another employer covered by this chapter."
JUSTIFICATION: Before enactment of the 1986 amendment, the determination whether a performing artist who was engaged, for all other purposes, as an independent contractor, was nevertheless an employee for purposes of workers compensation coverage, was made on a case-by-case basis, with analysis of the common law factors that determine whether a worker is an employee or an independent contractor, including payment of wages, the right to control the details of the work, the right to hire and fire, and others. It was observed, at that time, that venues, in order to escape liability for payroll taxes, unemployment insurance contributions, and workers compensation premiums, were essentially coercing performers to accept employment as independent contractors. When these performers were injured, they were then required to prove their status before the workers compensation board, an arduous and time consuming process that then almost invariably found for the injured performer. The intent of the 1986 amendment, as expressed by the Assembly sponsor, the late Assemblyman Roger J. Robach, was to "add clarity to the law," to "provide an accurate reflection in statute of the practical realities of the marketplace." Assemblyman Robach's supporting memorandum also noted: "Under common law these groups are eligible as employees since they meet the test of being under an employer's direction, supervision, and control. Currently these employees must now litigate
to be awarded their due benefits. Case law has consistently found in the employees favor."
Legislative debate also indicated that the purpose of the amendment was to protect performers who are not in the "star" category, and who are not in a position to protect themselves through negotiation or otherwise.
As the foregoing reflects, the 1986 amendment, as it applied to performing artists (the amendment also changed the statute as it applied to licensed real estate brokers and taxicab operators), was intended to eliminate the necessity for hearings in the case of performers who were, under traditional principles, actually employees, not to change the law as it applied to "star" performers, whose contracts were carefully negotiated, who exercise independence in their artistic performance and interpretation, and who would not, under traditional principles, be considered employees. However, the language of the amendment is read by many as a sweeping pronouncement that performers who are engaged, by written contract, as corporate executive level persons, do not have the same option as other individual corporate owners who engage in service contracts through their corporations to elect to forego workers compensation benefits.
The measure places executive officers of a corporation, who would otherwise be deemed excluded from coverage under section 54(6)(c) or section 54(6)(e) of the WCL, but who happen to be performing artists, on the same footing as any other corporate executive who owns his or her own corporation or limited liability company to work as an employee of his or her own entity, and retain the same right as any other such corporate executive/owner to elect to forego workers compensation benefits, and have the relationship with the venue be determined under traditional common law principles in the event of injury.
The proposal would have no significant impact on the beneficial purpose of the 1986 amendment. The question of employment status would arise only where there was a written contract by which the performer is stipulated to be employee of a corporation owned solely by the performer, or owned by the performer and one other person, in which the performer is an executive officer. The musician hired by a night club or restaurant to entertain during weekend brunch hours, or the semi-professional comedian performing at a comedy club, who has not established a corporation in this or another State, would still be automatically covered by the statute as amended in 1986. A written form contract by which the performer agreed to independent contractor status would not invoke this proposed change, because the change would not be applicable to written contracts directly between the performer and the venue.
LEGISLATIVE HISTORY: New bill.
FISCAL IMPLICATIONS: None
EFFECTIVE DATE: This act shall take effect immediately and shall apply to all cases, matters or proceedings pending on such date, or which have not been finally adjudicated on such date or commenced on or after such date.
STATE OF NEW YORK ________________________________________________________________________ 7823 IN SENATE June 12, 2014 ___________Introduced by Sen. MAZIARZ -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the workers' compensation law, relating to the defi- nition of employee THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The fourth undesignated paragraph of subdivision 4 of section 2 of the workers' compensation law, as added by chapter 903 of the laws of 1986, is amended to read as follows: "Employee" shall also mean, for purposes of this chapter ONLY, AND NOT FOR THE PURPOSES OF ANY OTHER PROVISION OR STATUTE DEPENDENT UPON THE DEFINITION OF EMPLOYEE, a professional musician or a person otherwise engaged in the performing arts who performs services as such for a tele- vision or radio station or network, a film production, a theatre, hotel, restaurant, night club or similar establishment unless, by written contract, such musician or person is stipulated to be an employee of another employer covered by this chapter, OR EXEMPT FROM THE REQUIREMENT OF COVERAGE BECAUSE THE MUSICIAN OR PERSON IS AN EXECUTIVE OFFICER OF A CORPORATION WHO IS DEEMED EXCLUDED FROM COVERAGE UNDER PARAGRAPHS (C) AND E OF SUBDIVISION SIX OF SECTION FIFTY-FOUR OF THIS CHAPTER. "Engaged in the performing arts" shall mean performing service in connection with the production of or performance in any artistic endeav- or which requires artistic or technical skill or expertise. S 2. This act shall take effect immediately and shall apply to all cases, matters or proceedings pending on such date, or which have not been finally adjudicated on such date or commenced on or after such date.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15565-01-4