Dallas, TX asked in Employment Law and Tax Law for Texas

Q: Should a church hire as employees musicians who occasionally play, or is it OK to treat them as independent contractors?

Many churches have 'worship teams'—teams of musicians who play many or most Sundays per year, and I understand how they would probably need to treat those musicians as employees. The church in question, however, occasionally has professional musicians from local orchestras play music on Sunday mornings. Such musicians might perform for two hours on a Sunday, and a very well-used musician might perform for three Sundays in a year; most musicians, however, probably return to play once every year and a half to two years. These musicians bring their own instruments, and the only instructions given them amount to 'play this at this time in the service'. Would such occasional musicians squarely meet the criteria for independent contractors?

This is a Texas church, but I'd be interested in an answer for California, too, as that state sometimes leads the way in regulation. I'm interested in how musicians would look both to the IRS and the state.

Thanks for considering this!

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1 Lawyer Answer
D. Mathew Blackburn
D. Mathew Blackburn
Answered
  • Tax Law Lawyer
  • Englewood, CO

A: The test for employee vs independent contractor is multi factored. There's not enough information here to provide an answer.

California is aggressive on reclassifying contractors as employees but that doesn't matter if you're not in California.

if you go talk to an accountant/CPA they'll say employee. If you hire a tax attorney they'll advise you on how to ensure they're contractors.

You'll need to hire someone to draft the contractor agreement and walk you through the process of ensuring that the status cannot be reclassified by the IRS of TX unemployment division.

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