ICSOM Chairperson Keith Carrick’s address at the 2024 ICSOM Conference in August raised an issue that has long flown under the radar in our orchestras: the practice of individually negotiated overscale. Citing the potential for bias and inequity, Chairperson Carrick called for an end to this practice and for orchestras to instead collectively bargain overscale for titled positions in their CBAs. This is the right move for our orchestras.
To be clear: ICSOM is not calling for the end of overscale. Far from it. Principals and other titled players have unique and additional duties and must be compensated fairly for that extra work. Nor is ICSOM advocating for cutting anyone’s current overscale—as detailed below, existing contracts can be grandfathered. The point is that going forward, overscale amounts should be collectively bargained to ensure fairness and transparency among members of the orchestra.
It is important to be precise about what we mean when we say “individually negotiated” overscale. It does not mean overscale rates that are set forth in the CBA for those orchestras who have such provisions—25% for principals, 15% for assistant principals, etc.. It means a private agreement that a musician—usually a titled player, but not always—negotiates with management. The agreement provides for more favorable terms and conditions of employment than are in the CBA alone. Such a private agreement typically contains additional compensation (overscale) in the form of either a percentage of base wages or a fixed dollar amount, together with other favorable terms such as extra time off, solo guarantees, moving expenses (if the musician just won the job), and other perks.
Such agreements are legal in a unionized workplace. The Supreme Court in J.I. Case v. NLRB, 321 US 331 (1944) ruled that individual contracts may provide for more favorable terms than are in the CBA, but no lesser terms. Accordingly, even in orchestras where overscale has been bargained into the CBA, a musician may enter into a private agreement with management for an amount above and beyond the CBA rate, unless the CBA expressly prohibits that. For orchestras where the CBA is silent with respect to overscale, such a private agreement represents the only way a titled player can secure additional compensation.
I have personally worked on many of these agreements. I have negotiated one-on-one with managers, and I have consulted in the background with musicians who choose to do it themselves. But as my practice has focused more and more on collective bargaining, I am increasingly uncomfortable with these individual contract negotiations. In collective bargaining, I represent the group of musicians as a whole and try to secure the best possible terms and conditions for everyone. “Bargaining” for one individual is in tension with that goal, especially because every gain I would be able to obtain for that one musician comes at the expense of the group: every dollar in overscale means less money for everyone else; every extra week of time off in an individual contract usually means that other musicians will work harder or receive less time off; and so on. For that reason, my policy is to decline all requests from individual musicians to negotiate their personal contracts in an orchestra where I bargain for the group as a whole. I see that as a textbook conflict of interest.
But aside from that discomfort and the ethical concerns, there is a larger issue that must be confronted: individual contract negotiations perpetuate inequality and unfairness, for several reasons. First, the outcome of the negotiation is largely determined by how much leverage the musician possesses when they go into that negotiation. That leverage, in turn, rests on factors that usually have little to do with the musician’s abilities and talent, or the nature of the position.
For a musician who just won a job, their leverage depends mostly on where they are coming from, as their current situation signals to the employer how generous it must be in order to incentivize the musician to take the job. If a musician comes from a peer orchestra, management may have to offer more favorable terms to lure the musician; but if the musician is coming from a much smaller orchestra or has just graduated from school, management knows the musician is going to accept the position and there is little incentive to offer much of anything. Some musicians also are able to hire an attorney to negotiate on their behalf or are skilled at doing it on their own; others either do not or cannot, which can put them at a significant disadvantage in negotiating.
The result can be that if Musician A wins the job, is coming from a peer orchestra and can hire an attorney, they may end up with a much better contract than if Musician B won the exact same job but is coming from a small orchestra and negotiating on their own.
It is easy to see how more improper factors can infect the process as well. Race, gender, sexual orientation, gender identification—all these can play a role when no objective criteria are in place. That risk is worse for musicians already in an orchestra who are seeking improvements to their individual contract. That is not even a “negotiation” at all—the musician is essentially just asking for a raise. That opens the door for all sorts of subjective factors that depend largely on the musician’s personal relationships with management figures: is the musician a “troublemaker” who sticks up for their rights under the CBA; is the musician super-friendly with the music director; is the manager who makes the decision biased (even unconsciously) on the basis of race or gender; and so on.
Keep in mind that there is no duty to bargain in good faith when it comes to individual agreements. That duty exists with respect to collective bargaining only. For individual contracts, a manager can simply refuse to negotiate at all, make a take-it-or-leave it offer, withdraw offers previously made—all the things they can’t do in a CBA negotiation—with little or no recourse. The only real leverage an individual musician has is to not accept the job or, if they are seeking improvements that management is not willing to agree to, leave the orchestra. That is usually not an option. It is hard enough to win a job in this business as it is, and managements know it.
This can result in dramatic inequities. Players with similar principal positions in the same instrument family, for example, might have very different contracts. To be fair, most managers try to avoid that, especially because when a musician hears that a colleague is making more money than they are, they will often demand the same amount. Of course, there is no obligation for management to agree to that. There also is little transparency when it comes to overscale amounts—in fact, many managers insert confidentiality clauses into individual contracts that would prohibit the musician from telling other musicians how much overscale they are getting. (Such clauses violate Section 7 of the National Labor Relations Act and are unenforceable, but that does not stop employers from trying.) That is why musicians pore over the IRS 990 forms to try to discern what principals are making, an imperfect endeavor at best.
Third, that lack of transparency regarding compensation is increasingly recognized as a problem in all workplaces. Several states have now passed laws requiring employers to provide salary ranges for job openings in the application process. In Illinois, for example, beginning January 1, 2025, an employer with more than 15 employees must provide, in the posted job announcement, the expected salary range for the position. That means the employer must disclose the lowest to the highest amount the employer reasonably believes it might pay, as determined by factors including “the actual range of others currently holding equivalent positions.” Moreover, the employer cannot use open-ended phrases like “$40,000 and up” or “up to $60,000.”
Read literally, that means an ICSOM orchestra in Illinois—there are three—may no longer be able to advertise a principal position in the International Musician and simply state the base salary. The advertisement should state the highest amount of expected, privately-negotiated overscale as well—and the employer must base that amount at least in part on what other “equivalent” principals have in their contracts. Similar laws have recently gone into effect in Minnesota, Maryland, Massachusetts, California, New York, and Colorado (though not all define “pay range” as specifically as Illinois).
In sum, the terms of individual contracts are often based not on substantive qualities like the nature of the job or the musician’s abilities, but on things like the particular musician’s current employment situation, their negotiating skills, whether they use a lawyer, whether they are well-liked by management personnel, and—without a doubt—their race or gender.
For example, there is still a dearth of women in principal roles in ICSOM orchestras. This makes little sense, given that the overall gender balance is fairly even and no one can seriously argue that women as a rule do not play as well. It is almost certainly the result of a bias that holds that women are not capable of “leading” as well as men. If that bias exists in the hiring process—even unconsciously—it almost certainly exists when it is time for a woman to negotiate their contract. The pay gap between women and men in the United States is already a hurdle; any kind of bias against women being capable leaders will only exacerbate it.
Consider the harp. For decades, the only woman in the orchestra was the harpist. It is likely no coincidence that they often received the lowest amount of overscale in the orchestra. Harp is a solo instrument that is quite exposed, requires highly advanced skills, and is used more and more frequently in contemporary repertoire. But even today, I see harpists offered insultingly low overscale compared to other principals.
In my view, then, the practice of individually-negotiated overscale agreements is incompatible with the principles of fairness and equity that ICSOM advocates. However, I have heard the argument that this practice is widely accepted in similar industries like entertainment and sports. That is true. Local news reporters, for example, often work under union contracts that provide minimum rates; but the anchors and sports-desk personalities negotiate more. Sports league CBAs provide for minimum salaries, but of course the more successful players negotiate exponentially more.
That is because they are “stars.” But is that how we view our orchestras—as a handful of “stars” and a cast of supporting players who are less worthy? Some managements perpetuate that view, to be sure, picking and choosing which favored principal players to feature and reward. But is that really an orchestra? Is that a union? I say no.
Further, think of the instances over the past few years involving musicians accused of sexual misconduct. The vast majority involved “stars”—concertmasters, conductors, principal players. That is no accident. Our once and future president even bragged about his ability to commit sexual assault with impunity: “When you’re a star, they let you do it. You can do anything.” I would venture that the vast majority of musicians in ICSOM orchestras do not subscribe to that attitude. So why do we accept it in our orchestras? If we are going to confront the issue of sexual misconduct, much of which is based on power dynamics, why do we maintain a system that accretes power and advantages to certain, favored “star” musicians?
There is another way. Overscale for titled players can be collectively bargained. Many ICSOM orchestras have overscale rates in their CBA; a couple take the next step and actually prohibit any individual agreement that provides for larger amounts. That is the alternative to the prevailing practice of individually negotiated overscale. Orchestras can decide as a group what overscale should be, whether that means the same percentage for all principals or more for certain positions (concertmaster, for example). No one can negotiate more than that amount, no matter where they are coming from, how much the music director likes them, how much they suck up to management, or whether they are a particular gender or race.
The point is that the musicians as a whole, through their bargaining representatives, determine what musicians filling certain positions should make—and those amounts are not based on subjective or improper factors regarding any particular individual. No longer would prospective titled players need to worry about their leverage or their negotiating prowess. Gender, race, and other inappropriate factors would be irrelevant. The musicians as a group, in each orchestra, would decide how lucrative the titled positions need to be in order to attract the players they need.
This would necessarily be a long-term project, of course. In any orchestra that decides to make this switch, current individual agreements would need to be grandfathered. It is unrealistic to ask any musician to take what could be a significant pay cut. (Interestingly, it would be legal, if unwise, for the employer and the union to agree to eliminate existing overscale agreements: the National Labor Relations Board addressed precisely that scenario in the Buffalo Philharmonic in 1992, in a decision that makes for interesting reading. Contact me if you would like a copy.)
To be clear, it is the choice of each orchestra’s membership, through its bargaining representatives, as to whether to make this switch. ICSOM believes strongly in the ability of our orchestra musicians to bargain the terms of employment that are best for their orchestras. We are not interested in issuing top-down edicts. The reasoning and recommendations in this article come out of years of negotiating both collective bargaining agreements and individual contracts, and this is ultimately a change we need in our orchestras; but reasonable minds can disagree.
For my part, I will no longer accept clients to negotiate individual contracts in orchestras. Nor will I consult in the background if someone wants to do it on their own. I will answer questions about the process, but I will no longer advocate in this way.
This is not something I do lightly. I will need to turn down long-time clients and friends. I hope they will understand, but it is their life and their income. Nonetheless, I believe it is the right thing to do. And if nothing else, I hope this starts the conversation.
