Lose Your Gig? File for Unemployment, if You Can…

802 Legal Corner

Volume CVII, No. 1January, 2007

Harvey Mars, Esq.

If you are a Broadway musician and your show closes, can you apply for unemployment? Yes. While you are collecting unemployment, can you sub on other Broadway shows, teach lessons, and play other freelance gigs? Yes, but your unemployment check may be reduced.

O.K. — that’s the easy scenario. But what if you’re a club date musician and your leader or office hasn’t booked you on a wedding gig in months? Can you apply for unemployment in that case?

In New York state, professional musicians — as well as other performing artists — are considered to be employees for purposes of unemployment compensation. New York Labor Law § 511(1)(b)(1-a).

What this means is that even though you may not always have steady or frequent work — which is the norm for professional musicians — you are not automatically disqualified from receiving unemployment compensation.

In this article I briefly review the conditions by which an individual may claim entitlement to unemployment benefits.

In order to be eligible, you must demonstrate that you involuntarily became unemployed through no fault of your own. If it is determined that you were terminated for cause — or if you voluntarily quit without good reason — you will be disqualified.

Additionally, eligibility will be compromised if you are not totally unemployed and are not ready, willing and able to work in your usual employment or in any job for which you are reasonably fitted by training and experience. Labor Law § 591.

For musicians the term “total unemployment” is rather ambiguous, since many musicians — especially those in the single engagement club date or concert fields — work sporadically.

As a general rule of thumb, total unemployment means that you have lost your job with a particular employer without the immediate prospect of being re-employed. For example, an employer might be a Broadway show, an orchestra, or a club date office.

For a club date musician, “total unemployment” would be easiest to demonstrate if the club date office has made it clear that you — through no fault of your own — will not be hired on any job with that office again.

This situation most recently occurred with musicians who were employed by Steven Scott Enterprises. That club date employer, once one of the largest in New York, recently ceased operating, allegedly due to financial difficulties. Musicians who lost work because of Steven Scott’s termination of operations may be entitled to unemployment compensation benefits.

Additionally, in order to claim entitlement to unemployment compensation, you must have worked at least 20 weeks in the 52- week period prior to the date you make your claim.

For single engagement musicians, any service — including rehearsals — is considered work that may satisfy these criteria.

Hence, if a classical musician engages in a single performance of an opera, all the rehearsals may be used to satisfy the 20-week standard. Jory v. Catherwood, 34 A.D. 2d 260, 312 N.Y.S. 2d 383 (3rd Dept. 1970).

How big is an unemployment check? The maximum is $405 per week. Technically, there’s a formula: one twenty-sixth of your pay during the highest calendar quarter of the 52-week base period by the employer. Labor Law § 590(5).

Remember that your benefits may be reduced if you are freelancing at the same time.

You can collect unemployment for 26 weeks. This period may be extended where cause is shown.

Anyone who wishes to apply for unemployment compensation benefits may safely and securely do so with the New York State Department of Labor at


After this article (above) went to press, I received a letter from Jon Bloom, executive director of the Workers Defense League. The WDL has provided no-cost representation to Local 802 members who seek unemployment compensation benefits and are required to go to a hearing before an administrative law judge.

Mr. Bloom pointed out to me some areas from the article which warranted clarification. (It’s nice to see someone actually reads these articles!)

For the benefit of any musician who wishes to apply for unemployment compensation benefits, below is a summary of the areas where clarification is necessary.

First, the New York State Department of Labor no longer goes by the “20 weeks out of the past 52” measure for determining base period cited in the article. The standard currently used is counting earnings in the past five completed calendar quarters. Earnings are required in at least two out of either the first four of those five, or the second four out of the five — a period known as the alternate base period.

Additionally, Mr. Bloom pointed out that obtaining an extension to unemployment benefits is currently next to impossible. No federal extension is available and in New York an extension is only available to individuals who qualify for a special program (called 599) may receive benefits.

Finally, Mr. Bloom pointed out that in the WDL’s experience, a musician is considered unemployed or partially unemployed as long as they have no specific offers of work. The hypothetical club date musician I wrote about in my article would not be required to demonstrate that he would never be hired with his previous employer again.

I appreciate Mr. Bloom’s useful comments and recommend that any musician in need of representation at an unemployment compensation hearing seek out the assistance of the Workers Defense League.

Harvey Mars is counsel for Local 802. Legal questions are welcome from 802 members. E-mail them to Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.