If you, like many Oregonians, are a hard-working musician who, in
spite of your best efforts, just hasn’t been able to find a “real job,”
I have some very good—if entirely illogical—news for you,
just in time for the holidays. It is my pleasure to inform you that, if
you have ever played a show at Mississippi Studios, the Oregon
Employment Department (OED)—citing Oregon law—likely
considers you to be a legal employee of the intimate North Portland
venue. Unless you had the near-supernatural foresight to stipulate
otherwise in your contract, you are part of a prestigious, unwitting
staff that might also include such notables as Kristin Hersh, Kaki
King, and Country Joe McDonald, all of who have graced the space’s
stage.

Unfortunately, this is not the kind of job where, in exchange for
your labor, you get a regular wage and maybe even the option of some
overpriced health insurance from your employer. No, this is the kind of
job that neither you nor your ostensible employer even knew you had,
but for which they are nonetheless expected to pay state employment
taxes. Depending on your contracts, it’s possible that you even have
several such jobs at various venues you’ve played in Oregon, a
situation which, depending on how the OED and Oregon attorney general
decide to proceed, could lead to your being effectively robbed of your
intellectual property and to financial hardship for venues—such
as the $5,600 in back employment taxes that Mississippi Studios owner
Jim Brunberg was recently informed he was obligated to pay for his
theretofore unbeknownst, de facto workforce of musicians.

This odd state of affairs came to light as the result of a random
audit the OED conducted on Mississippi Studios in early autumn. At root
are two seemingly contradictory statutes in Oregon employment law
regarding the definition of independent contractors, and the legal tax
status of performing musicians. On the one hand, performing musicians
seem to meet the legal criteria laid out for independent contractors:
They are their own bosses, perform a service for a fee, bear the risk
of loss, and are essentially “free from direction and control” in what
they do at a concert. On the other hand, a provision in state law added
in the early ’60s and then amended in 1983 that was intended to
regularize the relationship between restaurants and the musicians they
employ for regular, recurring gigs, states that, absent a contract
stipulating otherwise, musicians are automatically considered employees
of the venue at which they are performing. (OED says the latter law
means the independent contractor test doesn’t apply to
musicians.)

Brunberg has contested the OED’s demands for back taxes,
taking the position that it simply makes no sense to treat
bands—particularly touring acts—as regular employees of the
spaces in which they perform, and that it is not in the spirit of the
obscure law. He warns that, if audited, other venues could be affected
similarly, and that by deeming musicians employees, he believes the OED
is making venues the copyright owners of bands’ performances, divesting
bands of their intellectual property. He has collected numerous letters
supporting his stance from bands, bookers, venue owners, and legal
experts, as well as from Portland’s mayor and city commissioners.

OED Communications Manager Tom Fuller explained his organization’s
position: “The [Oregon] Employment Department is required by law to
perform audits of Oregon businesses to ensure compliance with the
payment of unemployment insurance tax. These audits are done randomly.
We don’t target a particular industry or occupation. When a business is
selected for audit we must look at all applicable laws regarding that
business,” he says. Moreover, he points out, there are many music
venues that have clauses in their musicians’ contracts specifically to
avoid this conundrum.