New York City attorney Harvey Mars, who works with the Associated Musicians of Greater New York, Local 802, has reported on an unusual development in workers’ compensation. Under the New York Act, musicians and other performing artists were excluded from the definition of “employee” until 1986.  They were considered, instead, independent contractors.  In that year, however, such workers came under the coverage of the law and were captured within the term “employee.”  This development was and is considered a major advantage to this class of workers. 

            In the wake of a serious accident suffered by a Metropolitan Opera star, however, this advantageous status quo was threatened. During a 2011 performance of Gounod’s Faust, the mezzo-soprano Wendy White was injured when, apparently, a hinge connecting a platform to a stairway failed.  The fall caused a career-ending injury to her torso which “caused nerve damage that prevents her from singing sustained high notes.”  The incident was presumptively covered by workers’ compensation, but Ms. White has been pursuing a civil action against the Met so as to be potentially entitled to damages.

            In the meantime, legislation to amend the law was advanced in the legislature to make workers’ compensation coverage in effect a matter of election for musicians, allowing them to opt out in advance of any injury. This legislation, vigorously opposed by organized musicians, was approved but then vetoed, in December 2016, by Governor Cuomo.  (Oddly, the legislation was drafted as if retroactive in effect – it would allow Ms. White to proceed with her civil action.)  Meanwhile, an appellate court refused to dismiss the case summarily, on exclusive remedy grounds, suggesting that the original inclusion of musicians in the New York Act did not apply to “stars.”  (The author does not think much of that reasoning – or how it could ever possibly be applied.)  

                In any event, the crisis seems to have been averted by further legislation which the governor did, in fact, sign, in March 2017.  The new law limits the exception “only to Ms. White’s accident….  Such legislation, known as a ‘picture bill,’ would allow Ms. White’s suit to proceed but would not otherwise disturb the broad coverage the law extends to performing artists….”  Read this interesting account at http://www.harveymarsattorney.com/articles-publications/.