You finally receive the call you’ve been waiting for; it’s your dream client, and they’re offering you the kind of project you’ve dreamt about working on for the length of your career as an independent artist. They’ve seen your artwork, read through your bio, and have decided they want to work with you. You discuss the project further, you begin working and put every ounce of your being into completing this project. After all, if you do a good job, they’ll hire you for more projects in the future. You finish the project and they love it. Days pass, then months. Where is the money you were promised?
For close to 55 million freelance independent artists across the nation, this scenario is far too commonplace. But for approximately 1.3 million New Yorkers working as freelancers, the realities of being a freelance creative are about to change. In late 2016, a little-known law called the “Freelance Isn’t Free” law was passed by a unanimous 51-0 vote. Signed into law by Mayor Bill de Blasio, the NYC freelance law has unequivocally altered the landscape for independent artists.
If You’re an Independent Artist, Here’s Why You Should Care About NYC’s Freelance Law
One-third of New York City’s workforce are considered freelance workers – they are independent artists, writers, and designers who forgo the stability of the 9-5 in favor of more freedom to create and work on whatever they choose. So it makes sense that New York City is the first city in the nation to protect freelance independent artists, since over the years, New York City’s freelancers have seen their share of late and, often, non-payments. According to the Freelancers Union, 7 out of 10 freelancers and independent artists will experience some form of non-payment throughout the course of their career. With the passing of this new law, companies are now required to pay freelancers and independent artists in full for work within 30 days of completing an assignment, or by the date agreed upon in writing.
As more and more companies are trending towards independent contractor and freelancer positions to fill more immediate voids within their workforce, New York City is setting the stage for improved working conditions and more protection for the independent artist and freelancer.
Passed in October 2016, the NYC freelance law applies to any contract executed on or after May 15, 2017. Essentially, the law applies to any individual hired to perform work for a business who does not have a set salary, but officially defines a “freelance worker” as
“any natural person or any organization composed of no more than one natural person, whether or not incorporated or employing a trade name, that is hired or retained as an independent contractor by a hiring party to provide services in exchange for compensation.”
While the measure excludes certain types of sale representatives, lawyers, and medical professionals from protection, it embraces a wide variety of workers, such as photographers, independent artists, graphic designers, web designers, filmmakers, and home contractors.
But How Does NYC’s Freelance Law Protect Freelancers and Independent Artists?
Prior to the passage of the Act, freelancers often found they were often never paid, and on the occasions they were, payment was often late or partially made. The NYC freelance law is designed to ensure that freelancers and independent artists are paid in full and on time, and specifically requires that any contract or series of contracts with a monetary value of $800 or more must be in writing and contain certain details, such as an itemized list of the services contracted, the value of the services, and the rate and method of artist compensation. More importantly, the contract must also contain the date on which the hiring party must pay, or at the very least, the mechanism by which the payment date is to be determined.
But the NYC freelance law does more than simply require a written contract for freelance work and artist compensation, along with provide assurances that freelance workers will get paid. It provides protection for employers and hiring parties as well. With the new law in place, employers will find that the risks involved in hiring freelance workers and independent artists are minimized, while productivity from freelancers will likely increase. Both parties will now have a clear outline and understanding of what is expected of each other, while freelance independent artists will be assured that they will receive the artist compensation promised to them for freelance work. With the fear of not being paid minimized and eased, freelancers will be able to increase productivity and become more reliable, in turn creating and fostering future relationships with employers and hiring parties. Seeing as non-payment and late payments to freelancers in New York state alone costs taxpayers more than $1 billion dollars annually, this law is a win-win across the board.
A crucial element of NYC’s freelance law is the prohibition it places on a hiring party from using any type of intimidation, harassment or any other action that penalizes or is likely to deter a freelance independent artist from attempting to exercise their rights under the law, tactics often employed to quiet the freelance worker and instill the fear of being unable to obtain future work. Perhaps most significantly, this Act can be used regardless of one’s immigration status, providing protections to some of New York City’s most vulnerable employees.
The NYC freelance law explicitly provides for an administrative remedy in allowing freelance workers to file complaints with the Department of Labor Standards. Within twenty days of an administrative complaint being filed, the agency will send a certified letter to the employer, who then has 20 days to respond to the complaint. Once the agency receives the employer’s response, the agency will issue its decision within twenty days. This 60-day process provides the potential for a swift and less costly resolution, a notion welcomed by freelance independent artists who often do not have the resources or money to pay for an attorney.
Time constraints also exist within the new law, providing some protection to hiring parties. An action alleging a violation of the written contract requirement must be initiated within two years of the alleged failure to pay, and actions alleging a violation of the retaliation provisions of the Act and/or the payment provisions must be brought within six years. Meaning that, freelance independent artists have up to two years to report that they weren’t paid for their services, or six years to claim that the client treated them unfairly or in a retaliatory manner.
What Will Stop Employers From Continuing to Not Pay Freelance Independent Artists?
Simply put: Money. A violation of NYC’s freelance law has the potential to be quite costly to employers. An employer who refused or failed to provide a written contract after a demand was made faces damages of $250. However, those damages increase if the employer is also found to have violated other provisions of the law, such as failure to fulfill artist compensation or a complete failure to pay. In the event the hiring party both fails to provide a written contract and violates other provisions of the law, the damages could equal the total value of the contract, with the potential of that amount being doubled if the judge so wishes. If a hiring party is found to have retaliated against a freelance independent artist, the hiring party would also be liable for potentially double the full value of the contract. The new law also allows for attorneys’ fees and costs if any damages are awarded, and provides that a judge may award any other such damages he or she deems just.
The NYC freelance law also provides for another remedy which can be initiated by the City. If a hiring party is found to have engaged in a “pattern or practice” of violations, the City can initiate an action which carries civil penalties up to $25,000. Meaning that, a company that is caught pulling this kind of stunt with multiple freelance independent artists could face a fine that would significantly impact their business.
With the passing of this law, City officials also created a “Court Navigation Guide for Freelance Workers.” This 54-page resource provides information on the NYC freelance law, including answers to commonly asked questions, initiating lawsuits and administrative complaints, and how a freelance worker can protect themselves against nonpayment of artist compensation. This will be a useful guide for independent artists searching for answers if they’re in a sticky situation with an employer.
The Freelancers Union is also a free resource which can provide information for health insurance and other benefits as well as templates for written contracts.
Freelancers across the nation constitute 30% of the national workforce and contribute more than $1 trillion to the economy every year. The NYC freelance law is the first of many steps towards equal footing for freelance independent artists in an unregulated market.