Reasonable Compromise for Small Orchestras
I have been a professional violinist all my life. For the past 18 years, my career has consisted of cobbling together a performance schedule from the the concert seasons of the Oklahoma City Philharmonic, the Fort Smith Symphony, the Tulsa Symphony, the Lawton Philharmonic, Symphony of Northwest Arkansas (SoNA,) and the Arkansas Philharmonic Orchestra (APO,) plus freelance gigs at weddings, casinos, and touring music theater productions.

None of these groups are full-time. All of them operate on basically the same rules. (You’ve passed your audition! Now sign your contract for the rehearsals and concerts you can play. If you can’t commit to most of the concerts, we will not hire you for any of the concerts. Show up early, wear the uniform we tell you to wear, bring your instrument. We’ll give you the music, and we’ll tell you how to play it. If you get sick, let us know so we can hire someone from our sub list.) Why, then, do some of these groups consider me an employee, but some call me an independent contractor?
Calling someone an employee means filing a W-2 for their income. It also means that the orchestra is responsible for paying the employer’s portion of Social Security and Medicare taxes for their musicians, instead of saddling the musician with the full percentage of these taxes. Moreover, calling musicians employees means the musicians are protected by civil rights laws that govern employment relationships. However, if a musician has only W-2’s, then the musician can’t deduct the cost of their instrument and its maintenance on a Schedule C (profit and loss) when they file their taxes.
Calling someone an independent contractor means filing a 1099 for their income. It also means that the orchestra doesn’t have to pay any part of the musicians’ FICA taxes, and that the musicians pay higher taxes in the form of the “self-employment tax” (15.3%.) However, independent contractors get to deduct the cost of their instrument, its maintenance, and their driving miles on a Schedule C (profit and loss) when they file their taxes.
Common wisdom, among musicians, is that the increased ability to deduct business expenses offsets the higher tax rate we pay when our orchestras call us “independent contractors” and file 1099s on our behalf. We deduct everything as a business expense, and tell the IRS that we’re poor. We don’t mind too terribly much if they call us independent contractors, as long as we get to keep our deductions!
Unfortunately, if a musician tells the IRS that she is earning very little money each year, that musician will have a very difficult time qualifying for a mortgage when she wants to buy a house. She will never qualify for unemployment if her orchestra shuts down. She will struggle to meet income requirements if she ever wants to be a foster parent. Worst of all, she will only qualify for a pittance when she retires and wants to collect Social Security.
Allowing even a small, part-time orchestra to classify its musicians as independent contractors causes long-term harm to its musicians. However, musicians aren’t fighting back too much, because they don’t want to lose their business expense deductions, and they don’t want to overburden their orchestra’s budget to the point where the orchestra would have to shut down.

Ever since the 2016 decision in Lancaster Symphony Orchestra v. National Labor Relations Board (Index №14- 1247,) which established that musicians in this small, per-service orchestra were actually employees (even though their contracts stipulated an independent contractor relationship) there has been a shift in how orchestras classify their musicians, nationwide.

However, I live in northwest Arkansas. As you can see, my region is a little corridor of red pins on a map where green outnumbers red by almost 3:1. All three regional orchestras (SoNA, APO, and Ft. Smith) pay their musicians with 1099’s, despite having auditions, contracts, personnel policies, and absolute control of the musicians’ work while they’re onstage.
I have filed IRS form SS-8 for all three of these orchestras, asking the IRS to examine the evidence and consider reclassifying the musicians as employees, so that these orchestras will have to start paying their fair share of our taxes. However, while I wait for a response (and it feels like forever) I encourage orchestras everywhere to review their finances and see whether it might be better to make the switch voluntarily, rather than risking “back taxes” or other penalties by sticking with 1099’s.
Musicians, don’t worry! If the orchestras reclassify you, they have the option of going with “statutory employee” status instead of “standard employee.” Statutory employees get to keep their Schedule C deductions (although they don’t get unemployment benefits) but they don’t have to pay the self-employment tax. There’s always a middle ground, and it’s good to educate yourself and talk about these things openly.
