Worker misclassification, specifically workers categorized as independent contractors who really should have been somebody’s employee, has become an almost daily front page news story. In a recent case a group of orchestra musicians were found to be employees and not independent contractors.

Federal and state courts, and government agencies are aggressively pursuing actions against employers who they feel are misclassifying workers as independent contractors. While we’ve heard a lot about on-demand drivers for Uber and Lyft, the issue transcends industries and job categories. In a more unusual example, the United States Court of Appeals for the District of Columbia Circuit has ruled that orchestra musicians are actual employees and not independent contractors, making them free to unionize and entitled to other employee benefits.

This decision denied a petition from the Lancaster Symphony Orchestra which had challenged the National Labor Relation Board’s (NLRB’s) finding that the musicians were employees of the orchestra in large part because of the control the Orchestra had over them. In the underlying decision, the NLRB emphasized the Orchestra’s control over the musicians’ performance, and the appellate court reinforced this point by describing the conductor as having “virtually dictatorial authority” over the musicians.

In making its decision, the Court had reviewed a 10 factor test to evaluate whether the musicians were independent contractors or employees. In focusing on the “direction and control” factor, the Court noted that the orchestra forbids the musicians from doing such things as crossing their legs and requires them to remain “attentive” through a performance.

To be fair, the Court did note that some of the 10 factors they evaluated did lean in favor of finding the musicians to be independent contractors. However, in the final analysis, the Court noted the “conflicting evidence” required it to defer to the board and therefore uphold the board’s finding that the musicians were employees.

It would be very easy for HR, Talent Acquisition, or Procurement professionals who are responsible for a contingent workforce program to dismiss this case as a unique and unusual example that doesn’t apply to the enterprise. However, that would be very short-sighted…

This decision is yet another example of federal and state agencies questioning a company’s classification decision to treat workers as independent contractors instead of employees. Many agencies, including the NLRB, the U.S. Department of Labor, EEOC and various state and local government agencies are prioritizing this issue. They are looking at employers across all industries who use independent contractors.

At the end of the day, independent contractor worker classification is perfectly valid so long as you do it correctly. There are a number of complicated, and sometimes competing, factors which influence proper worker classification. To do it right you need to examine the work, the worker, and the working relationship to make a defensible worker classification decision. The case of the orchestra musicians illustrates how tricky it can be. Fortunately, for clients who face these difficult situations, there are experts like TalentWave who offer proven IC compliance and engagement solutions.