BILL NUMBER:  S3353          REVISED MEMO 01/27/2017

 TITLE OF BILL :  An act to exclude certain musicians or persons who
had a work-related accident on December 17, 2011 who are an executive
officer of a corporation who contracts for the musician or person's
services from the definition of employee for purposes of the workers'
compensation law; and providing for the expiration of such provisions

 PURPOSE OR GENERAL IDEA OF BILL :

This bill would amend the unconsolidated law to clarify that a
particular musician who is exempt from the requirement to have
workers' compensation insurance because she is an executive officer of
a corporation who is deemed excluded from coverage under section
54(6)(c) or section 54(6)(e) of this chapter is not an "employee" of
the venue of the performance.

 SUMMARY OF SPECIFIC PROVISIONS :

Amends the unconsolidated law to clarify that a particular musician
who is exempt from the requirement to have workers' compensation
insurance because she is an executive officer of a corporation who is
deemed excluded from coverage under section 54(6)(c) or section
54(6)(e) of this chapter is not an "employee" of the venue of the
performance.

              

 EXISTING LAW :

In 1986, section 2(4) of the Workers' Compensation Law was amended to
define "employee" as including, for purposes of the Workers'
Compensation Law: "a professional musician or a person otherwise
engaged in the performing arts who performs services as such for a
television or radio station or network, a film production, a theatre,
hotel, 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 this chapter."

 JUSTIFICATION :

Before the enactment of the 1986 amendment to the workers compensation
law, the determination of whether a performing artists was an employee
for purposes of workers' compensation coverage was made on a
case-by-case basis with analysis of the common law factors that
determine whether a worker is an employee or an independent
contractor, including payment of wages, the right to control the
details and schedule of the work, the right to hire and fire, and
others.

It was observed, at that time, that venues, in order to escape
liability for payroll taxes, unemployment insurance contributions, and
workers compensation premiums, were essentially coercing performers to
accept employment as independent contractors. When these performers
were injured, they were then required to prove their status before the
workers compensation board, an arduous and time-consuming process that
then almost invariably found for the injured performer. The intent of
the 1986 amendment was to add clarity to the law and to eliminate the
necessity for hearings in the case of performers who were, under
traditional principles, actually employees.

The measure clarifies that a particular executive officer of a
corporation, who was injured on December 17, 2011, and who would
otherwise be deemed excluded from coverage under section 54(6)(c) or
section 54(6)(e) of the WCL, but who happened to be a performing
artists, was on the same footing as any other corporate executive who
owns his or her own corporation or limited liability company to work
as an employee of his or her own entity, and restores the same right
as any other such corporate executive/owner to elect to forego workers
compensation insurance, and, in the event of injury, to maintain their
right of action under traditional tort principles.  This bill is not
intended to impact the beneficial purpose of the 1986 amendments and
the right to workers' compensation for other musicians and preforming
artists, but to remedy an unfair interpretation of law for a
particular performer. . Every musician or other performing artist
would still be automatically covered by the statute as amended in
1986, unless the person is an executive officer of a corporation,
which contracted for the person's services, and the person, if not a
musician or other performing artist, would be excluded from coverage
under workers compensation law section 54(6)(c) or (e), and was
injured in a workplace accident on December 17, 2011, and has not
elected to be covered as permitted by sections 54(6)(c) or (e), and
has not filed a claim with the workers compensation board. This
narrowly tailored bill is in response to a specific situation that
resulted in an unfair inequity for a specific performer and addresses
concerns raised by the Governor in previous drafts.

 PRIOR LEGISLATIVE HISTORY :

This is a new bill.

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :

None.

 EFFECTIVE DATE :
This act shall take effect immediately and shall only apply to any
cases, matters or proceedings pending on such date, or which have not
been finally adjudicated on such date; provided, however, that this
act shall expire two years after such effective date; and provided
further that the expiration of this act shall not apply to any case,
matter, or proceeding authorized by this act which has not been
finally adjudicated on or before such expiration date.