January 6, 2017
By Steven Wishnia
Albany, NY – Gov. Andrew Cuomo has vetoed a bill that the state’s leading arts and entertainment unions said “would have stripped performing artists of important workplace protections.”
The measure, passed by the state Legislature last June, would have allowed performers to opt out of workers’ compensation benefits if they had incorporated their work as a business. Under it, performers would have been automatically defined as employees only if they had a written contract that stipulated that. Others would have been able to claim that they were independent contractors by criteria such as working at their own convenience, being able to take other gigs, not receiving fringe benefits, not being on the employer’s payroll, and not being on a fixed schedule.
“This damaging legislation would have caused many workers to lose their right under the law to be considered employees, and denied them the essential protections against workplace abuse that this classification provides,” said a Jan. 2 statement by five union presidents: Tino Gagliardi of American Federation of Musicians Local 802, Kate Shindle of the Actors’ Equity Association, Mike Hodge of SAG-AFTRA’s New York local, Thomas J. O’Donnell of Theatrical Teamsters Local 817, and James Claffey of IATSE Local 1, the state’s largest stagehands’ union.
If the bill had become law, they said, it “would have additionally forced performing artists to be subject to new, arbitrary standards far beyond what is required of any other profession to prove employment.”
In his veto message Dec. 22, Cuomo said the bill would violate the “fundamental” bargain of the state workers’ compensation system, that workers injured on the job are entitled to recover benefits for lost earnings and medical expenses while the employer is insulated from liability. It would “violate that basic compromise by defining certain individuals as non-employees” and “create confusion by treating an individual as a non-employee for workers’ compensation benefits but as an employee for the purposes of other laws,” he added.
The governor has vetoed similar measures twice before, most recently in 2015. This bill passed the Senate 40-22, sponsored by Jack M. Martins (R-Nassau), and the Assembly 137-7, sponsored by Matthew J. Titone (D-Staten Island).
Actors’ Equity urged members to take action against it in May. It said that by removing the designation of “employee” for performing artists who are self-incorporated, the bill “would enable employers to avoid their obligation to provide workers’ compensation benefits to these individuals” and could “jeopardize a host of other workplace rights and benefits for actors that come with being legally designated as an ‘employee.’” The New York State AFL-CIO also opposed it.
Those rights and benefits include collective bargaining, according to a Local 802 spokesperson. The bill was also dangerous, he added, because it could have enabled employers to demand that performers opt out of workers’ compensation and agree to be independent contractors if they want to get hired.