Money for Nothing, Working for Free
Monday April 27th 2015, 3:06 pm
Filed under: Making Money

If you’re a working musician, especially if you’re just starting out, you’ve almost certainly run across a club or bar owner who thinks you should be willing to work for free (or just for tips) in exchange for “exposure.” Personally, I love the responses from musicians who respond to “work for me for free” requests with their own requests for free food and drink for themselves and all their friends… because, of course, that will help the venue can gain “exposure.”

When you put it that way, most (thinking) business owners can figure out for themselves how silly and insulting such an offer is. (And I hope none of you ever succumb to the temptation to accept such an offer! Your entertainment brings additional business — i.e. &lrdquo;revenue” — to the venue. The owner needs to acknowledge this and compensate you accordingly.)

Did you know, though, there may be some instances where such an “offer” is not only insulting, but illegal? True fact!

Employees versus Contractors

Most of the time, musicians work in multiple venues, they bring their own equipment, they furnish their own stagewear, they set their own playlist… in other words, as long as you show up on time, play reasonable-length sets comprised of the general kind of music the venue owner contracted for and don’t trash the place, you’re good. In those cases, you would almost certainly be considered an “independent contractor.”

What that means: sadly, a whole lot of wage and hour laws don’t apply to you. For instance, venue owners don’t have any obligation to pay you overtime. Heck, they don’t even have to pay you minimum wage.

So, a restaurant owner could ask you to work for free. As greedy and shameless as the “offer” is, though, it wouldn’t actually be illegal.)

So, when does the law get involved?

Turns out, under the Fair Labor Standards Act (FLSA), IRS rules and as affirmed by many, many court decisions, there are certain criteria your job has to meet in order for you to be considered a contractor. You’re not an “independent contractor” just because the venue owner says you are. It doesn’t even make any difference if you signed a contract that says you’re a contractor. If you’re an employee, you can’t sign away your rights, even if you wanted to. (Although why you would want to sign away your rights as an employee is unclear.)

If your job doesn’t meet enough of the criteria to be classified as a contractor, you are considered an employee. It has nothing to do with what the venue owner wants your job to be, or what he says your job is, or what title he calls you. It has everything to do with what you actually do.

For instance, if somebody works as a regular member of the “house band” at a restaurant where the band plays several nights a week, and the owner decides what kind of music they’re going to play, specifies a certain “look” for their stagewear (or even supplies uniforms or costumes for them to wear), mandates rehearsal times, tells them exactly when they need to arrive and start setting up, and sets what hours they’re going to play, including when and for how long they can take breaks… it’s highly likely those musicians would be considered employees.

If that’s your situation, that would mean you’re covered under all the normal wage and hour laws, meaning the owner has to pay unemployment insurance for you, withhold taxes and pay them at least minimum wage for all your working hours (which also will almost certainly include that rehearsal time), among other things.

Working for free: don’t do it

Bottom line, working for free isn’t a good idea all the way around. It sets a bad precedent with the venue owner… and it might also be illegal.

Article copyright © by Diane M. Aull. All Rights Reserved.




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