The Third Department, reversing the Unemployment Insurance Appeal Board, determined that claimant, a professional classical flautist, was not an employee of the Syracuse Society for New Music (SNM) and was therefore not entitled to unemployment insurance benefits:
Here, claimant was retained only occasionally and sporadically by SNM to perform classical music with an orchestra at various venues. She was paid at a set rate of $300 for each concert. Claimant was not required to sign a written contract, was permitted to accept or reject any assignments offered, maintained other employment while performing for SNM and suffered no restrictions of any sort whatsoever upon her ability to perform for other organizations … . She had never missed a performance, but testified that if she had hypothetically needed to be absent, it would be her ethical responsibility to attempt to obtain her own replacement. The treasurer of SNM testified that, assuming circumstances prevented claimant from attending a performance, “it would be a collaboration” to obtain a substitute, although SNM would not generally ask a musician to provide his or her own substitute.
SNM did not provide claimant with equipment; the testimony revealed that, although “somebody on the board” may occasionally have brought a box of music stand lights, SNM owned no assets, the musicians provided their own instruments and music stands, and SNM merely acted as a “facilitator” in locating equipment already present at the venue … . Claimant was not required to wear a uniform or dress in any particular manner … . Although volunteers associated with SNM would set up the stage and seating, the musicians themselves ultimately made the decision on how to position themselves for a performance. Although the greater portion of the necessary practice for the performances was performed wholly at claimant's discretion, there were necessarily scheduled rehearsals and defined performance date … .
Viewed in context, we do not find that the requirements that claimant rehearse and perform specific pieces of music on set dates at set venues demonstrates meaningful control. Matter of Greene (Syracuse Socy. for New Music, Inc.–Commissioner of Labor), 2016 NY Slip Op 03567, 3rd Dept 5-5-16
UNEMPLOYMENT INSURANCE (CLASSICAL FLAUTIST NOT AN EMPLOYEE)/MUSICIANS (UNEMPLOYMENT INSURANCE, CLASSICAL FLAUTIST NOT AN EMPLOYEE)