From JDSupra, Melissa Camire, Lonnie Giamela, and Courtney Leyes discuss how to properly classify temporary workers who are supporting summer concerts and festivals. Melissa, Lonnie, and Courtney write:
Concert venues are filling up, summer festivals are in full swing, and artists are on the road for another summer touring season. Behind every one of those shows is a temporary workforce assembled fast: tour managers, production managers, lighting and sound technicians, merch staff, photographers, videographers, backline techs, and a dozen other roles that make a tour run. While many of these workers are brought on as independent contractors, you need to ensure such a classification is accurate. Misclassified contractors can lead to back wages, unpaid overtime, employer-side payroll tax liability, unemployment insurance assessments, and exposure to class or collective claims – potentially in every state the tour passed through.
A Written Contract Doesn’t Fully Protect You
Issuing a 1099 or signing an independent contractor agreement doesn’t settle the legal question in and of itself. Regulators and courts look at how the relationship actually functions, not what the paperwork says.
For touring crews, we often see problems arise when contractors:
- Travel exclusively with one artist or tour for months at a stretch
- Work under the day-to-day direction of tour management
- Perform work that’s integral to the production itself
- Follow schedules set by the tour, not schedules they set
- Use equipment and resources the production provides
Any of these facts alone might not tip the scale to a finding that the worker in question should actually be classified as an “employee.” But several of them together, on a single tour, raises the risks.
Roles Worth a Second Look
Every production is different, but companies should periodically check contractor arrangements for the following roles:
- Tour managers and production managers
- Tour accountants
- Lighting technicians and audio engineers
- Backline technicians and stage managers
- Merchandise personnel
- Photographers, videographers, and social media content creators traveling with the tour
- Drivers and logistics coordinators
- Wardrobe, hair, and makeup professionals
Some of these can be structured as legitimate contractor relationships. Others carry real risk depending on how much supervision, exclusivity, and duration is actually involved.
One Tour, a Dozen Employment Laws
National tours don’t stay in one state, and neither do the laws that govern them. Wage and hour rules, paid leave, unemployment insurance, workers’ compensation, and classification standards all vary state by state.
Some states – most notably California, New Jersey, and Massachusetts – apply classification tests that are far tougher to satisfy than the federal standard. A worker properly classified in one state is not automatically properly classified in the next one the tour rolls into.
Watch the Relationship, Not Just the Start Date
One classification risk that is often overlooked arises when a work arrangement evolves over time. A lighting designer hired for one festival date ends up staying with the artist for the full tour cycle. A freelance content creator becomes the tour’s full-time social media presence. A production consultant starts making day-to-day operational calls alongside management.
None of that happens by design, but all of the changes impact the legal analysis. Companies need to checking for revised roles as the tour progresses, not just at the initial contract formation stage.
Before the Buses Leave: A Compliance Checklist
Here are some simple steps you should consider to put yourself in the best position when it comes to independent contractor classification.
Get payroll, HR, legal, and tour management aligned before the tour starts
Review independent contractor agreements for key touring personnel with your legal counsel
Confirm the day-to-day working relationship actually matches the intended classification
Flag contractor relationships that have carried over across multiple tours
Identify workers performing services in states with stricter classification standards
Source: Summer Touring Season Is Here: Is Your Crew Properly Classified? | Fisher Phillips – JDSupra