How do they get away with it?

Venue owners ask musicians to play for free. And many performers, desperate for an opportunity to showcase their skills, agree to do just that. I don’t blame the musicians. In most instances, they struggle to survive and have to grasp at any opportunity, however meager. But the owners are a different matter.

Is it ethical for them to ask a musician to play for free? Is it even legal?

No one else at these establishments works without a guaranteed minimum wage. A nightclub that asked a bartender or waiter to work without pay, or just for tips, would be prosecuted. We have minimum-wage laws and a host of other worker protections mandated by law. Why aren’t musicians granted these same rights?

Over the last two weeks I have consulted with experts in employment law to answer that question. They have offered a range of opinions on the subject, but the bottom line is that, in some instances, this practice may be illegal. But the situation is tricky, and highly dependent on the specific work conditions and relationship between owner and musician.

The issue is complicated by the absence of specific court decisions on this question. “I have been studying this subject since the 1980s,” explains Matthew Finkin, an expert in employment law and a professor at the University of Illinois College of Law. “I can’t recall a single case involving a musician in a situation such as this.”

But the same was true with regard to unpaid internships—at least until recently. These were long considered perfectly legal and uncontroversial. But this has changed, and the unpaid internship is increasingly subject to scrutiny and court intervention. Could this also happen with the exploitation of unpaid musicians?

The most relevant legal precedents involve strippers and lap dancers. Judges have taken a close look at exotic dancers. (Fill in your own punchline here.) Venue owners frequently ask these performers to work without salary, merely for tips—and sometimes require them to share the gratuities with the boss. Strippers may even be asked to pay “rent” for their time on the pole. Is this legal?

The question boils down to the nature of their work. The court must decide whether strippers (or musicians) are employees or independent contractors. If they are employees, they are covered by minimum-wage law and enjoy other legal protections. But if they are independent contractors, the venue owner has no obligation to guarantee a minimum salary.

In the case of exotic dancers, the court has determined that they are independent contractors if they are able to set their own hours, and enjoy some control over the conditions of their work—for example, choose their own music or how they deal with customers. But if the owner makes too many stipulations, the situation changes. If the boss at the gentlemen’s club sets the hours worked, requires a certain type of music, imposes rules on conduct with patrons, etc. the court will probably view this as an employment relationship. The owner of the Bada Bing now has to pay a minimum wage.

What about musicians? They are similar to lap dancers (at least from a legal perspective). Are they employees or independent contractors?

The IRS offers a 20-point checklist (PDF) to help us answer this question. If we review this list, we can see that many freelance musicians clearly fall into the category of independent contractor. Especially if they play at a wide range of venues, frequently moving on to the next venue or town, they have little justification for demanding consideration as employees.

One of the experts I consulted, a law professor at a Midwestern university, insisted that the case here was absolutely clear-cut. “There aren’t always straightforward answers in the law, but there is here,” he insisted. “The musicians are independent contractors, not employees, and wage-and-hour laws basically apply only to employees.” But Alan Hyde, professor at Rutgers University School of Law, took a different stance, noting that “recent cases are running strongly against employers, expanding the legal definition of employee.” He believed that in many instances, “club musicians are in fact employees of the clubs.”

Imagine a situation in which musicians perform regularly at the same venue. They play during hours designated by the owner. They may use equipment provided by the establishment, perhaps a piano or microphones or amps. The owner doesn’t like hip-hop, and wants jazz or country music or some other musical style that matches the ambiance and clientele. The boss may demand the theme from Rawhide, and not an old blues tune. In this case, our musicians start looking like employees.

“The key issue is how much control the worker exercises over the conditions in which they work,” Finkin explains. “The courts are exploding with cases.”

Judges also take into account the degree of economic dependency when determining a business’s obligations. Even if migrant workers move from farm to farm to help pick crops, the court may determine that they are employees. Their situation of dependency on the boss has strengthened their claim for minimum wage and protection as employees.

Are musicians dependent on the club owners? Certainly many of them are. And perhaps it’s time for the boss to accept commensurate responsibility for the musicians invited on to their bandstands.

“Employers for years, like your venue owners, have wrongly assumed that they can magically make anyone a non-employee just by saying so,” Hyde explains. “Employees have begun to push back.” He cites the recent ruling by the National Labor Relations Board that scholarship athletes at Northwestern are statutory employees who could form a union. This decision is under review in Washington, but the trend is clear. Musicians may enjoy similar protections, at least in some circumstances.

Maybe our legal system will step in and make this decision for nightclubs and other venues. But why do we need to wait for a court order? Owners shouldn’t require a judge to tell them it’s wrong to make money off unpaid labor—and not just from dishwashers and janitors, but even musicians. The performers have already paid their dues, with years of practice, study, and apprenticeship. Isn’t it time for owners to pay theirs, too?