"I’ve encountered non-payment. I’ve encountered late payment even more often," explained JustRaymona, a patternmaker in New York City's fashion industry. During Fashion Week 2015, one of her clients paid her half of their agreed-upon advance fee. The lack of cash prevented JustRaymona not only from paying her rent on time, but also from hiring others to help with her workload. Instead, JustRaymona worked 18-hour days in order to complete her jobs.
Days after Fashion Week ended, her client sent her a check for $355 rather than $2,300. It was not until January 11th, 2016, that JustRaymona received her full payment—four full months after the conclusion of Fashion Week.
JustRaymona’s story is not exceptional. Over one million freelancers live in New York City. Late payment or no payment is a common story. Video editor and animator Chris Maue started the year owed $10,000. City Councilmember Ben Kallos is still owed $6,000 from his days as a freelancer.
A survey by the Freelancers Union found that 71% of freelancers have had difficulty getting paid and that the average loss per freelancer is approximately $6,000. For many, late payments are often followed by settlement offers of smaller payments.
"I frequently accept the lower amount to get any payment at all," said Latefa Harmon, a professional development consultant for corporations and large non-profits. After waiting a year and a half, Maue was offered a final payment of $1,900 instead of the $2,600 he was owed. He accepted. Deborah Cowell, who was owed $500 for editorial work, was handed $60 in cash and told, "Take it or leave it."
Freelancers can take delinquent clients to court, a move that requires paying an attorney and, even if victorious, does not guarantee payment. Only five percent of freelancers take delinquent clients to court, in large part because of the additional cost of hiring an attorney and going through the court process.
But 1017-A, or the Freelance Isn’t Free Act, introduced by City Councilmember Brad Lander, would bring greater options—and protections—to the city’s freelancers. Under the bill, freelance work valued at over $200 would require a written contract that spells out terms like payment and payment deadline. The employer would be required to pay no later than 30 days after the contract deadline.
If a freelancer does take an employer to court and wins, the employer would be responsible for attorney fees and double damages. The bill also creates an administrative enforcement procedure through the Department of Consumer Affairs, which could offer mediation or assess civil penalties. Twenty-seven of 51 Councilmembers have already signed onto the bill.
On a drizzly Monday afternoon, freelancers rallied in front of City Hall. Inside, over a dozen freelancers and advocates testified before the Council’s committee of consumer affairs about the payment problems facing freelancers.
Harmon, who has been freelance consulting since 2008, says she is routinely paid less than the agreed-upon amount. She is still waiting on $5,000 from 2015. These late and lower payments have often prevented Harmon from paying both her rent and tuition at her son’s private school on time. Four years ago, she had to pull her son, now twelve, from private school and place him in public school.
Drama critic and writer Randy Gener is owed payment from several publications. After being assaulted in January 2014, he had to undergo four surgeries and extensive hospitalization. Lack of payment means that he cannot pay for those surgeries or ambulance fees of over $3,700.
Though they praised the bill as “an absolutely laudable goal,” officials from the Department of Consumer Affairs expressed concerns about several aspects. Testifying at the hearing, Deputy Commissioner Amit Bagga warned against assuming that a written contract will always benefit freelancers, noting that “plain language” is nearly impossible to assess and that non-paying clients can still dispute whether work was completed, when it was completed, and whether the work was satisfactory.
Bagga also questioned DCA’s proposed involvement in assessing and mediating non-payment claims, noting that DCA lacks a practical way of assessing claims and counterclaims without an extensive fact-finding process, a process the department is currently unequipped to do.
"The courts are the most appropriate forum to dispute abuses," Bagga said. He also expressed concerns about the expectation that DCA be responsible for enforcing the bill’s provisions and mediating disputes. Currently, DCA is responsible for issuing licenses to and mediating complaints against home improvement contractors. That mediation alone, he noted, costs millions of dollars annually.
He suggested that the agency could create an online hub that provides model contracts, examples of plain language of an employer’s rights and responsibilities, and lists of legal resources that already exist to address labor disputes.
But Lander believes that DCA involvement is crucial. Given that 70 percent of the cases reported to DCA are resolved without court proceedings, he believes that most employers would provide payment after receiving a warning letter from DCA.
“There’s still work to do, but I’m optimistic that we can make this happen,” Lander told Gothamist after hearing nearly three hours of testimony in which freelancers and advocates stressed the need for increased protections this bill would provide. “I’m confident that working with a strong and diverse coalition, we are going to get this done so that workers can get paid on time and in full for the work that they do.”
