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PURSUANT TO LABOR LAW SECTION 511, THE NEW YORK CITY SUPPER CLUB WAS NOT THE EMPLOYER OF THE MUSICIANS, DANCERS AND OTHER PERFORMERS WHO ENTERTAINED AT THE CLUB; THEREFORE THE CLUB WAS NOT OBLIGATED TO MAKE UNEMPLOYMENT INSURANCE CONTRIBUTIONS ON BEHALF OF THE PERFORMERS (THIRD DEPT).

​The Third Department, reversing the Unemployment Insurance Appeal Board, determined that the musicians, dancers and other artists who performed at a New York City supper club (Griffs) were not employees of the club under Labor Law 511. Therefore the club was not obligated to make additional unemployment insurance contributions with respect to those performers:

Pursuant to Labor Law § 511 (1) (b) (1-a), the term employment includes “any service by a person for an employer . . . as a professional musician or a person otherwise engaged in the performing arts, and performing services as such for a . . . 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 [the Labor Law]” … . “The statute, which was designed to extend the availability of unemployment insurance and workers’ compensation benefits to those in the performing arts, creates a rebuttal presumption of employment” … — a presumption that may be rebutted by a written contract establishing that the performer in question is the employee of another covered employer … . …

… [T]he sole contested issue is whether a provision contained within the written agreements executed by the performers established that they were “employee[s] of another employer covered by [the Labor Law]” (Labor Law § 511 [1] [b] [1-a]). To that end, paragraph No. 8 of the performers’ contracts with Griffs provides, in relevant part, that Griffs “is not nor shall become [the performers’] employer, as other corporations employ them” … . Matter of Griffs Global Corp. (Commissioner of Labor), 2022 NY Slip Op 06670, Third Dept 11-23-22

Practice Point: Under Labor Law 511 the musicians, dancers and other performers who entertained at the New York City supper club were not employees of the club because their contracts stated they were employees of other corporations. Therefore, the club was not required to make unemployment insurance contributions on behalf of the performers.

 

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