802 Legal Corner

Volume CVI, No. 5May, 2006

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.

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?

Musicians are considered unemployed or partially unemployed as long as they have no specific offers of work. So if you’re a club date musician and have no “specific offers of work,” you are eligible for unemployment benefits.

What if your orchestra is involved in a labor dispute, and you find yourself locked out or on strike? Can you apply for unemployment benefits then? If you are locked out, you may receive unemployment benefits immediately. If you are on strike, it’s more uncertain and it depends on the circumstances. Sometimes there are disputes about whether a situation is a lockout or a strike. For instance, members of the Louisville Orchestra members were denied unemployment benefits by a court, which ruled that they were not locked out but rather on strike.

In order to be eligible for unemployment benefits, 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, you must have at least some recent earnings. When you apply, the Department of Labor will ask you where you’ve worked and what you’ve earned during the past five completed calendar quarters. All of those earnings, whether for one night or one year, will help you establish a claim. The amount you will qualify to receive weekly will depend on the quarter in which you had the highest amount of earnings.

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 standard. Basically, even one day of employment is counted towards the criteria.

Also, when you apply for unemployment benefits, you must show that you are available for, capable of, and actively seeking employment.

If the Department of Labor denies you unemployment benefits, that’s not the end of it. Claimants have an absolute right to a hearing (as long as they request it in writing within 30 days of the denial notice), and many win at hearings.

How big is an unemployment check? The maximum in New York State is $405 per week. (Technically, there’s a formula: one twenty-sixth of your earnings during the highest earning quarter of the 52-week base period.)

Let’s say you’re collecting unemployment benefits and you get a one-night gig. When it comes time to apply for benefits for that week, you have to report that you gigged that night. Your benefits will be reduced 25 percent for each day you work in a given week. So if you had been collecting the maximum benefit of $405 per week, your benefits will go down $101.25 for each day that you had a gig that week.

You have to re-certify your unemployment benefits every week, usually on a Sunday night. You fill out an online form or call a phone number to certify that you are still unemployed, and still available, capable and actively looking. You also report how much work you did in the previous week, if any. This certifies your benefits for the previous week.

How long can you get unemployment benefits? In New York State, claimants who qualify can receive up to 26 weeks.

However, during economic recessions, Congress has historically added funding for extended unemployment benefits. The current extension gives claimants a substantial number of additional weeks, varying somewhat from state to state depending on the state’s unemployment rate. In New York, claimants can collect up to 67 additional weeks (for a total of 93 weeks). Claimants in New Jersey and Connecticut can collect up to a total of 99 weeks.

Unfortunately, as of Feb. 29, 2012, funding for the extension program will expire. Unless Congress re-enacts the program, unemployed workers in New York and other states may only be able to collect benefits for 26 weeks.

If you use up all of the weeks of your unemployment benefits, you can apply for a new round of benefits in the future after going through a period of work. You cannot apply twice for new benefits during a single 12-month period.

We’re putting links on the Local 802 Web site about how to apply for unemployment insurance. We’ve also created some shortcut links for you:

If you’re currently receiving New York state unemployment benefits through a pre-filled MasterCard, you can have your unemployment money transferred directly to your account at the Actors Federal Credit Union, which any musician can join. For more information, see

Finally, the Workers Defense League is an organization that helps workers with unemployment claims. The WDL has provided no-cost representation to Local 802 members who seek unemployment compensation benefits and who have been required to go to a hearing before an administrative law judge. It’s a great organization and Local 802 endorses them. For info, call the Workers Defense League at (212) 627-1931.