The Beat Goes On: D.C. Circuit Upholds NLRB View That Orchestra Musicians Are Employees

Last week, a federal appeals court enforced a ruling by the NLRB that orchestra musicians are employees, not independent contractors. The import of the decision in Lancaster Symphony Orchestra v. NLRB is sure to reverberate in concert halls throughout the country – particularly those with small to medium-sized orchestras, which often rely on contracted players – but it also holds lessons for employers outside the music industry.

The case began in 2007, when a local chapter of the American Federation of Musicians filed a petition seeking to represent the musicians of the Lancaster (Pennsylvania) Symphony Orchestra. The Orchestra challenged the petition on the grounds that its musicians were independent contractors, not employees covered under the NLRA, but the Board disagreed. Applying a multi-factor test derived from the common law of agency, the Board found the balance of factors pointed toward employee status.

On appeal, the U.S. Court of Appeals for the District of Columbia noted that it would adopt a “middle course” in reviewing the Board’s decision and uphold it as long as it was supported by substantial evidence. In other words, the Court did not decide how it would “classify the musicians in the first instance, but only whether the Board confronted two fairly conflicting views.”

After reviewing the evidence, the Court found that several factors pointed toward employee status. For example, the Court agreed that the Orchestra exerted extensive control over the means and manner of the musicians’ performance, including controlling the musicians’ posture and limiting their conversations during rehearsals and performances. The Court also found that the Orchestra’s conductor exercised “virtually dictatorial authority” over the manner in which the musicians performed and circumscribed their independent discretion. Further pointing toward employee status, the Court noted that the musicians were in the business of performing music and their work therefore comprised a part of the Orchestra’s regular business. Although the musicians were free to perform with other symphonies, the Court found that provided only limited entrepreneurial opportunity, as the musicians could increase their income only by taking a job with another orchestra.

At the same time, the musicians’ high degree of skill, coupled with the short amount of time they were engaged by the Orchestra (approximately 140 – 150 hours per year), pointed toward the musicians’ status as independent contractors. The Court also noted that the musicians provided most of their critical tools, i.e. their instruments, but it also noted, as the Board had found, that the Orchestra supplied other necessary tools, such as music stands, chairs, and the concert hall.

Faced with these “two fairly conflicting views,” the Court deferred to the Board’s conclusion that the musicians were employees, not independent contractors. Because of the Court’s standard of review – and because the outcome of the case rested on standards that the Court admitted were “decidedly unharmonious” – the Lancaster decision is by no means a coda on the issue of employee classification. Other courts and agencies, for example, have found orchestra members to be independent contractors for purposes of anti-discrimination laws (Lerohl v. Friends of Minnesota Sinfonia), state unemployment laws (Portland Columbia Symphony v. Oregon Employment Department), and state labor laws (Waterbury Symphony Orchestra v. AFM, Local 400). Still, the Lancaster decision shows that the NLRB does not intend to slow the tempo of its pro-employee agenda.