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Friday, February 5, 2016

Stagehands Independent Contractor Finds 11th Circuit

Crew One refers stagehands to event producers for concerts, plays, graduations, sporting events, trade shows, and religious events in the Atlanta area. Event producers ordinarily contract with Crew One for a certain number of stagehands and pay the company an hourly rate for each stagehand. Crew One then refers interested stagehands from its database.

At Crew One orientation, stagehands must sign an “Independent Contractor Agreement” before Crew One adds them to the database. The agreement informs the stagehand that he or she is “an independent contractor” who is “responsible for all . . . taxes,” “hired on an individual project basis,” and entitled to “negotiate for each individual project.”

On the day of the event, stagehands report thirty minutes before the client’s call time so that a Crew One project coordinator can confirm attendance for payment purposes and assign them to a particular department, such as rigging or carpentry. The stagehands bring their own basic supplies, and Crew One provides no supplies other than the vests. After work begins, stagehands report exclusively to tour personnel, except that stagehands must sign out with Crew One to record their time of departure.

In March 2014, the International Alliance of Theatrical Stage Employees petitioned the National Labor Relations Board (NLRB) to represent stagehands who contract with Crew One. The NLRB determined that the workers were employees of Crew One, which gave the board authority to regulate their relationship and directed an election and subsequently, certified a union.

Crew One refused to negotiate with the union which caused the NLRB to find it guilty of an unfair labor practice, which prompted Crew One to ask the Eleventh Circuit Court of Appeal to review the case.

On Wednesday, the 11th Circuit Court of Appeals vacated the NLRB’s decision that Crew One Productions Inc. had violated the National Labor Relations Act. In writing for the majority, Judge William Pryor found that Crew One lacked control over the stagehands, and that all control over their work was exercised by Crew One’s clients.  Judge Pryor then noted that Crew One provided some basic tips about “dealing with touring personnel.” It warns stagehands that touring crews “sometimes are not in the best of moods” and encourages stagehands to wait for and follow instructions, “ask questions when necessary,” and remember that tour personnel “are your boss for the day.”

Common Sense Counsel: Next time you are trying to decide how to properly classify someone, as an employee or an independent contractor, understand that the right to control the means and manner of performance is a key factor-with about 20 other factors. You can complete the 5 part AL DOL checklist at www.alabamaatwork.com.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901.