The Third Department determined that, for purposes of assessing unemployment insurance contributions, musicians on tour were employees of, not independent contractors for, Columbia Artists Management, but the workers who loaded and unloaded the equipment used by the musicians were independent contractors, not employees:
… [T]here are a number of factors that establish that Columbia retained control over important aspects of the musicians’ work. Specifically, Columbia paid the musicians a flat fee per week for the duration of the tour as well as the costs of transportation, lodging and miscellaneous expenses, supplied them with sheet music on occasion and prohibited them from taking on engagements that conflicted with the tour. Most significantly, under the written contracts, Columbia retained the right to ensure the artistic quality of the show by insisting that a performance be changed if it found it to be inappropriate. In addition to retaining broad overall control over the musicians’ performances, Columbia retained the right to dismiss any musician for drug or alcohol abuse. In view of this, we conclude that substantial evidence supports the Board’s finding of an employer-employee relationship between Columbia and the musicians … .
We reach a different conclusion, however, with respect to the loaders. There is nothing in the record to indicate that Columbia exerted any type of control over either the means or the results of the work of these individuals. All communications involved in retaining the loaders occurred through the union representative at the venue, who dictated the terms of payment as well as the number of loaders needed. The Columbia representative present at the time the trucks were unloaded was there solely for the purpose of paying the loaders and provided no equipment or instruction to assist them in performing their work. Matter of Columbia Artists Management LLC…, 515768, 3rd Dept 9-26-13