S863 is a bill currently under consideration by the New Jersey State legislature. As written, it would reclassify a large number of “gig” workers as employees of the company for which they work rather than as independent contractors. It is intended to assist wage earners such as Uber drivers and delivery workers who are currently denied health care, unemployment insurance, and other such benefits. This is a laudable goal. However, the bill is so broadly worded that it would also place touring musicians playing one-night stands into this same category of workers who must be reclassified as employees.
As written, it would subject all performers and the venues that hire them – even for one night – to the same taxes, licensing, insurance requirements, fees, regulations, mandated deductions and time-consuming paperwork obligations that apply to full-time corporate employees. These new requirements will likely put the Folk Project and other similar volunteer-run organizations out of the business of presenting concerts.
New Jersey S863 was modeled on California Assembly Bill 5, passed in 2019. That bill resulted in such an outcry from musicians, venues and the music industry that California Governor Newsom signed AB2255, amending AB5 to allow touring musicians to retain their status as independent contractors under specified conditions.
We have proposed an Amendment, similar to the one passed in Calilfornia, that would exempt musicians who work at the same venue for fewer than 10 weeks from being reclassified as employees, thus allowing them to retain independent contractor status. State Senator Stephen Sweeney, the bill’s sponsor, asserts that S863 would not constitute a change to existing law in this regard. After a careful review of the bill, our pro bono counsel, Kelley Drye & Warren, LLP, has prepared a memorandum concluding that S863, as currently worded, constitutes a change to existing law that would infringe on the First Amendment rights of musicians and the venues that hire them.
Please send any questions, comments or concerns about our response to S863 to The Folk Project S863 Committee.
