Casting Off the Yoke of Misclassification

June 15, 2016

by Jay Blumenthal, Director Symphonic Services Division

As announced in the May 2016 issue of the International Musician, the recent ruling by the US Court of Appeals for the District of Columbia Circuit to deny the Lancaster Symphony Orchestra’s petition for review and grant the National Labor Relations Board’s (NLRB’s) cross application for enforcement is indeed a very important ruling, especially for the Lancaster Symphony Orchestra musicians. This decision affirms the NLRB’s classification of Lancaster Symphony musicians as employees, not independent contractors as the Lancaster Symphony Orchestra management asserted. Nine years is a long time to wait to be allowed to bargain a union contract, but I expect it will certainly be worth the wait. 

Why was this outcome so important and why was it worth expending union resources to achieve this goal? I’m reminded of the repeating chant “The whole world is watching! The whole world is watching!”

While it may be an exaggeration to suggest that the whole world was watching this case, to be sure, many friends and foes of the labor movement were indeed watching. Our friends were hoping for a positive outcome for the Lancaster Symphony musicians because this case provides an opportunity for other musicians, and potentially other workers with similar circumstances, to finally cast off the yoke of misclassification. 

Musicians classified as employees are allowed to join a union and bargain collectively. Wages, working conditions, job security, grievance and arbitration, pension, health insurance, vacation, and leaves of absence are all “mandatory subjects of bargaining” between an employer and the union representing its employees. When workers are classified as employees rather than independent contractors, their employer is also obligated to pay its fair share of Social Security and other statutory employment taxes, rather than shifting the entire burden onto the musicians. And employees, but not independent contractors, are entitled to protection under state workers’ compensation and unemployment compensation laws.

The life of a symphonic musician tends to be challenging enough without being misclassified as an independent contractor. Anyone performing in an orchestra knows how preposterous it is to suggest they are anything but an employee. The employer hires and fires, tells musicians where to be and when to be there, what to wear, when they can leave the stage, and yes, even how musicians are to sit and act.

As the court pointed out, musicians “must not cross their legs, talk, or practice while the conductor is on the podium, or interfere with the concentration of other musicians.” And, in a description that surely strikes a chord with every symphonic musician, the court observed: “the Lancaster Orchestra’s conductor exercises virtually dictatorial authority over the manner in which the musicians play.”

Now, with union representation, the Lancaster Symphony musicians will for the first time have a meaningful voice to engage in dialogue with their employer about their wages, benefits, and working conditions. And as negotiations for a first collective bargaining agreement finally begin, the whole world—or at least the world of symphony orchestra musicians—will still be watching what unfolds in Lancaster.

Early on, the significance of this case and the far-reaching ramifications of the outcome were not lost on the AFM, which has been fully supportive of the Greater Lancaster Federation of Musicians, Local 294, and the musicians of the Lancaster Symphony. AFM General Counsel Jeff Freund and Trish Polach of Bredhoff & Kaiser in Washington, DC, ably represented the interests of Local 294 as intervenors, working closely with the NLRB to vindicate the rights of the musicians. They deserve our thanks and recognition for their great work on this case.

But at the end of the day, the musicians of the Lancaster Symphony Orchestra are deserving of the highest praise, for they are the ones who had the courage to stand up for themselves by organizing and voting for union representation. 

Bravissimi tutti! Let the negotiations begin!