No sax at work? No problem. If someone steals your saxophone, your employer might have to pay for it. In California, your employer must indemnify you for any losses that his “want of ordinary care” causes.1 This principle applies with equal force in the music business. The right to indemnity typically arises in two ways: (1) the employer fails to take “reasonable and necessary precautions” to safeguard an employed musician’s musical instruments and equipment on premises under the employer’s control; or (2) the employee incurs a necessary expenditure or loss “in direct consequence of the discharge of his duties.”
The Right of an “Employed Musician” to Indemnity If His “Employer” Fails to Safeguard His Musical Instruments and Equipment
Labor Code section 2800.1 defines an “employee” as an “employed musician working on premises which are under an employer’s control.”2 The trouble is that the statute doesn’t define a “musician” or “musical instruments or equipment.” The definition of “music” is elusive. The Concise Oxford Dictionary defines “music” as “the art of combining vocal or instrumental sounds (or both) to produce beauty of form, harmony, and expression of emotion.” But one man’s noise is another man’s symphony. Many would argue that a DJ who scratches records all day is a “musician” and that his turn tables are “musical equipment.”
Even if you’re Mozart, you’re not necessarily an “employee.” The most important factor that distinguishes an “employee” from an “independent contractor” is the right of the person for whom he performs services to control the details of his work.3 Section 2800.1, however, adds that an “employee” is a musician who works on premises under the control of an “employer,” which in turn “includes” both a “purchaser of services” and the “owner of premises upon which an employed musician is working.”4 Thus, a musician’s “employer” appears to “include” anyone who so much as buys a concert ticket.
Every employer must take “reasonable and necessary precautions” to safeguard an employed musician’s musical instruments and equipment on the employer’s premises.5 That duty is akin to an employer’s duty to furnish a safe workplace for his employees.6 That, in turn, requires the employer to exercise ordinary care and “to make a reasonably careful inspection at reasonable intervals to learn of dangers not apparent to the eye.”7 That would mean that a husband and wife who hire a band to play at their wedding reception would have to monitor their guests to make sure they don’t steal any of the band’s instruments.
But both the employed musician and his employer must take “reasonable and necessary precautions” to safeguard the musical instruments and equipment on the employer’s premises.8 In other words, the employer’s duty to indemnify an “employed musician” doesn’t arise if the latter fails to take such precautions.9 For example, a stadium owner wouldn’t have had to indemnify Pete Townshend after he purposely smashed his guitar during a Who concert. Similarly, stadium owner might not have to indemnify a rock band for any theft of its musical instruments or equipment if the band knowingly lets drug-addled fans hang out backstage.
The Right of an Employee to Indemnity for Damage to or Theft of Heavy Musical Instruments and Equipment
Even if Section 2800.1 doesn’t aid a musician, he isn’t entirely out of luck. Labor Code section 2802 requires an employer to indemnify an employee for all necessary expenditures or losses that he incurs in direct consequence of the discharge of his duties or of his obedience to his employer’s directions.10 Significantly, an employer can still be liable for indemnity under Section 2802 even he if takes all “reasonable and necessary precautions” to safeguard the employee’s musical instruments and equipment. The catch is that the employee’s loss must be: (1) “necessary” and (2) “in direct consequence of the discharge of his duties” or “obedience to his employer’s directions.”
No reported case has addressed whether Section 2802 requires an employer to indemnify an “employed musician.” In Machinists Automotive Trades v. Utility Trailer Sales Co., 141 Cal.App.3d 80 (1983), however, a refrigerator mechanic brought two heavy toolboxes to work according to the custom of the industry. His employer didn’t require him to leave his toolboxes at work, but given how heavy they were – only a forklift could move one of them – he couldn’t have moved them so routinely. After he left them over the weekend in a locked room on the employer’s premises, a burglar stole them. (The case doesn’t explain how.)
The Court of Appeal held that Section 2802 entitled the mechanic to indemnity. The Court reasoned that the custom of the trade required the employee to bring his own tools, and though he didn’t have to leave his tools at work, they were too heavy to routinely transport to and from work. The dissenting justice questioned how the mechanic incurred the loss in direct consequence of the “discharge” of his duties when the loss occurred when he wasn’t at work. The dissenting justice therefore would’ve held that the mechanic could be entitled to indemnity only if his employer’s “want of ordinary care” caused the loss.
Machinists Automotive Trades shows how an employed musician could demand indemnity for the loss or theft of musical instruments or equipment. But that case suggests that the musician would literally have to leave “heavy metal” at work if he wanted indemnity under Section 2802. Few, if any, instruments or amplifiers are so heavy that a musician would have to leave them overnight at a bar mitzvah. (Spinal Tap’s “Stonehenge” prop, though heavy, is an inanimate object, not a “musical” instrument or equipment.) Consequently, the usefulness of Machinists Automotive Trades to an employed musician remains uncertain.