Disputes are settled by inexpensive arbitration. Here are the important considerations: Where a musician collaborates in the selection of music and the development of the performance, the more this factor will bend toward independent contractor status. Types of activities that demonstrate employee-like control include: Selection of music by a member of the church staff. It includes the all-important free tix, parking, and munchies/water. Are the musicians your church pays to perform for worship services and other church events employees or independent contractors? 3 Additional services Where the church wishes to have additional services, you will be given as much notice as possible and be invited to play. Further, in the case where a musician is a professional and the church is one of many clients, it would be customary for the musician to have a performance contract with each client. Performance direction by a church staff member. The position at the orchestra was not a full-time occupation, as it involved at most 140 – 150 hours per year. As employees, the musicians are covered by the minimum wage and overtime rules of the Fair Labor Standards Act (FLSA) and similar state statutes; As employees, their wages are subject to income tax withholding and payroll tax withholding (i.e., FICA and Medicare) and the church must pay the employer’s share of the payroll tax; and. Ted Batson serves as Partner and Tax Counsel at CapinCrouse. Although licensed to practice law in Indiana, Ted’s services through CapinCrouse do not involve the practice of law and consequently do not result in the creation of an attorney-client relationship. The more frequently a musician performs, the more likely it is that the musician should be classified as an employee. Ted also leads the firm’s tax preparation practice, including IRS Forms 990 and 990-T and related state forms. Church liability release form 1 … If you are unable to play, another organist may be engaged and paid directly. An incorrect classification can result in significant negative financial consequences for both the church and the musician. ı~E׺h«±oU_KÁ']mS˜V÷èñ|€úßwwúéëéçצ_y_ï˜6,ßñ�¯ßNJwÓÎ_ÿtş—�²Ÿşxşú×S¿Ê§†Z6¼È†rh(ç†Ïò 54عáËĞ ÌÜbèWÇ�|ùê bRbèN0ó�s�x¥Ì>S[¦zdˆšaåTkà. Most often full, real names (rather than stage names) are included as well as contact information such as addresses and phone numbers. [1] Rev. [2] The context of the case was whether the musicians were employees and could therefore join a union and collectively bargain. When workers are paid a fixed fee, they bear the risk of the relationship between the benefit received (the fee) and the work expended. Contrary to what some churches may believe, whether a musician paid by a church to perform for services and events is an employee or an independent contractor is a question of fact and not subject to a particular “bright line” test. With a network of offices across the nation, CapinCrouse has the resources of a large firm and the personal touch of a local firm. In fact, the musician may even conduct his or her music performance business through a separate legal entity, a fact that would even further bolster a finding that the musician is an independent contractor. Depending on the state, the church may be required to pay state unemployment tax, obtain Workers’ Compensation insurance coverage, or pay other state-mandated employment-related taxes. A Music Recording Agreement is a specific type of Service Agreement whereby one entity, the company (or record label) contracts to produce musical recordings, such as on a complete album, for another entity, the artist. A musician with formal training and years of experience is more likely to demonstrate the requisite skill as contrasted with a high school student with limited performance experience. Basic information included in Music Performance Contracts: Name and contact information of both parties. The fact that the musicians were free to decline a performance, work for other symphonies, and pursue other musical endeavors, such as teaching, was not sufficient to change the weight away from employee status. The court discounted the fact that the musicians practiced on their own apart from orchestra rehearsals because “it is the conductor who directs how they perform.”, Musical performance “is a part of the regular business of the [orchestra].”. Below are some pointers on producing your own contract for a live gig… Ensure both parties have agreed to the essentials. Description of services. In Lancaster Symphony Orchestra v. NLRB, 822 F.3d 563, (D.C. Cir. Prescribing of rehearsal and performance times by the church. Numerous factors must be considered, each having its own weight and often interrelating with other factors. Contract Templates The Musicians’ Union Standard Live Engagement Contract L1. The most conservative approach is to treat all such musicians as employees. Note that the musicians in Lancaster Symphony Orchestra had an agreement, but that agreement alone did not make them independent contractors. Such an agreement is not dispositive because the courts, the IRS, the Department of Labor, and others will look to the way the parties conduct themselves to reach a final determination. Since 1972, the firm has served domestic and international outreach organizations, universities and seminaries, foundations, media ministries, rescue missions, relief and development organizations, churches and denominations, and many others by providing support in the key areas of financial integrity and security. The written agreement between the parties specifically stated that the relationship was an independent contractor relationship, a fact which the court found “suggest[ed] that both parties ‘believe’ that the orchestra’s musicians are independent contractors.”. On the other side of the ledger, the court acknowledged that: In considering who provided the instruments and place of work, the court found that this factor was not dispositive because, although the musicians generally supplied their own instruments, “the orchestra supplie[d] music, stands, chairs, and the concert hall.”, As a final factor, the court considered “the extent of the [musician’s] entrepreneurial opportunities” or, stated differently, whether the musicians had “significant entrepreneurial opportunity for gain or loss.” The court noted that the musicians could not “contract to fill multiple chairs, nor [could] they assign or sell their place in the symphony, or hire someone to fill their seat at any given rehearsal or performance.”. A musician who only performs for special services (e.g., at Easter or Christmas) may be an independent contractor. Rul. To summarize, the determination of whether a musician is an employee or independent contractor is a fact-sensitive determination that must be made on an individual basis. “The occupation of musician requires a high degree of skill,” a fact that may be indicative of an independent contractor. Musician agrees to treat and hold in confidence and not disclose all Confidential Information that Musician may have obtained from Employer or any affiliate of the Employer as a result of working on the Work and in the performance of this Agreement. But classifying musicians as employees has consequences: The IRS, the Department of Labor, and the courts (including the U.S. Supreme Court) have all articulated tests for determining whether a worker is an employee or an independent contractor.

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