The Washington Employment Security Department (ESD) has recently been auditing Seattle restaurants, resorts, hotels, and nightclubs and claiming that, under Washington law, their musicians (such as solo artists, pianists, and DJs) are employees of the company unless they have a written independent contractor agreement. Nightclubs, hotels, restaurants, and other businesses that hire musicians to perform on their premises should prepare for the possibility of similar audits.

Washington’s Requirements

Washington law provides that services performed by a musician or entertainer do not constitute “employment” if the musician or entertainer is under a written contract with a business that purchases their services. Accordingly, a business that wishes to engage a musician as an independent contractor must enter into a written independent contractor agreement with the musician; otherwise, the musician will be considered an employee.

The law applies to entities that provide music or entertainment for members or patrons incidental to their principal business activity, such as nightclubs, hotels, resorts, and restaurants. The law does not apply to music and entertainment businesses whose principal activity is music or entertainment.

In addition to the written contract requirement, the law also sets forth the following conditions in order for the musician or entertainer to not be considered an employee:

• The contract must be for a specific engagement or engagements.
• The musician or...

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