A New York appellate court has agreed with Wendy White, prominent opera singer at the Metropolitan Opera House at Lincoln Center (“the Met”), that White is not an employee and, therefore, may maintain a civil action in negligence against the Met for injuries she sustained in a fall from an elevated platform while she performed in the role of Marthe in the Met’s production of the opera Faust [see White v. Metropolitan Opera Assn., Inc., 2017 N.Y. App. Div. LEXIS 90 (Jan. 5, 2017)]. The Met contended that White, who had been featured in more than 500 performances at the Met over the course of 23 years, was its employee and that her exclusive remedy was to seek workers’ compensation benefits pursuant to the N.Y. Work. Comp. Law.

Specialized Definition of “Employee” for Those in the Performing Arts

Since 1986, New York has had a special provision related to the employment status of those in the performing arts. N.Y. Work. Comp. Law § 2(4), in relevant part, defines an “employee” to include:

a professional musician or a person otherwise engaged in the performing arts who performs services as such for … a theatre … or similar establishment … unless, by written contract, such musician or person is stipulated to be an employee of another employer covered by this chapter.

To support its contention that White was its employee, the Met submitted the “Standard Contractor’s Agreement (Per Performance)” pursuant to which WW, Inc., defined as “Contractor,” “agree[d] to furnish to The Met the services of its employee, Wendy White ( Singer’), as singer on an individual performance basis.” Under the terms of that agreement, the Met admittedly exerted a significant level of control over White. For example, she was required to live in the New York metropolitan area, and to immediately report any “indisposition.” White was also required to notify the Met whenever she was absent from her residence for more than two hours on a rehearsal or performance date. Payment for each performance was to be made to WW, Inc.

The agreement incorporated by reference the terms of the collective bargaining agreement (the CBA) between the Met and the American Guild of Musical Artists, Inc., to which plaintiff belonged. White contended, however, that she was not an “employee” under N.Y. Work. Comp. Law § 2(4) because she worked pursuant to a “per performance” agreement between WW, Inc. and the Met, and came within the exception applicable to a person who “by written contract … is stipulated to be an employee of another employer covered by” the statute. Further, she contended that she did not cede total control of her performance to the Met, and thus the Met did not become her special employer. She also contended that she was a “star” and that, as such, she had “full artistic control” over her performance.

Motion Court’s Decision

The motion court denied the Met’s motion to dismiss the complaint, holding that the Met did not present sufficient evidence to prove that plaintiff was its “employee” at the time of the accident.

Appellate Court Agreed White Was a “Star”

The appellate court agreed with the motion court, indicating White’s employer was WW, Inc., not the Met. As a performer, White ordinarily would have been included within § 2(4)’s definition of employee. Her services were provided to the Met pursuant to the per-performance contractor’s agreement, entered into between her corporation and the Met, that provided that the corporation “agree[d] to furnish to The Met the services of its employee, Wendy White …, as singer on an individual performance basis.” The court indicated that, by written contract, White was stipulated to be an employee of another employer.

The court agreed with White’s contention that she was “a star,” but allowed that, because of the stipulation in the agreement, such a designation actually made no real difference in this situation. It agreed that the legislative history of § 2(4) supported White’s suggested distinction, that the statutory definition of employee was intended to protect the vast majority of performers, who are not “stars,” and that the statutory exception was designed to exclude those performers with the clout to negotiate the terms of their own engagements.

Finally, the court added that to the extent the common-law special-employee doctrine continued to apply, the Met failed to submit documentary evidence establishing conclusively that it had assumed exclusive control over the manner, details and ultimate result of White’s work. The case can now move forward to trial, if necessary.

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