Freelance Isn’t Free Act

If you’re freelance in the State of New York (or hire Freelancers in that State) then you should know about the new bill to protect the rights of Freelance Workers which came into effect yesterday (May 15, 2017).

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The Freelance Isn’t Free Act (Local Law 140 of 2016) establishes and enhances protections for freelance workers. Given that 84% of respondents in our latest Production Salary Report identified as Freelance, we think it’s important for you to understand how the new law may affect you.
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Source: Brits in the Box Annual Production Salary Report 2016
As a freelancer the act means that you have:
  • the right to a written contract
  • the right to be paid timely and in full
  • the right to be free of retaliation

For those engaging freelancers in the State of New York the legislation (ratified by Mayor Bill De Blasio in 2016 after a successful lobbying campaign by the non-profit organisation Freelancers Union) means companies can be penalised for violating these rights. The penalties could include statutory damages, double damages, injunctive relief, and attorney’s fees.

If you are a Freelance Worker (defined by the Department of Consumer Affairs as any individual hired or retained as an independent contractor to provide services for compensation), then here’s how you will benefit from the new law.

The Right to a Written Contract

All engagements totalling $800 or more (over a 120 day period) must be in writing. This means that if you work for the same company in a 3 month period and the total value of your services  is $800 or more (first booking is say $300, the second is $500), then you need a written contract. The contract should detail the work that you’re doing (scope of works / responsibilities), how much you’re getting paid (a rate or a fee?), and the payment date (eg. will you be paid weekly, bi-weekly, or at various stages of project delivery?), as well as the method of payment (cash, check, ACH transfer?).

Now we’re not attorneys,  but in our opinion here’s the most important thing about the contract in order for you to be protected by this law.  This law is currently only applicable in the State of New York, so you should make sure that your agreement is governed by New York State law (assuming that you’re performing the work in New York).

Look for contract wording such as:

“This Agreement and any disputes arising under it shall be governed by New York State law”

Timely Payment

Finally we can expect to get paid for the work that we do in a timely manner – hurrah!  While TV and the visual arts aren’t the only industries where Freelancers have reported problems with getting paid, they’re certainly up there as some of the biggest offenders.

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Source: Freelancers Union The Costs of Non Payment Report

The new law mandates that we must be paid for all completed work and that payment must be made on or before the date in the contract. If there’s no date in the contract (eg. where payment is based upon delivery or milestones), then you must get paid within 30 days after the work is completed.

If you’re payment is delivery based, we advise you to check that the client has actually received and accepted the materials that you’ve delivered.  This closes the door to them later claiming that you haven’t delivered, or didn’t deliver what they were expecting (eg. you delivered a topline budget for a competition reality series when they were actually expecting a detailed budget for the live final). This is also why it’s important to be detail-oriented in the ‘scope of works’ part of your agreement. A ‘budget, script or schedule’ is simply not detailed enough, clarity is king.

You should confirm acceptance with a simple email (and again, this is not legal advise, merely a suggestion) wording to the effect of:

“Please confirm delivery and acceptance of the topline budget for Survivor”.

If your email is not acknowledged within a reasonable time (and let’s be honest, in today’s hyper connected switched on world; reasonable is really no more than 2 business days), then follow up with:

“Just following up on my earlier email to confirm that you’ve received and accept the Survivor Topline Budget. If I don’t hear back from you by X, I’ll assume we’re good and that payment will be made within 30 days of Y”.

No Retaliation

The new law makes it illegal to penalise, threaten or blacklist Freelancers for exercising their rights. Now, this sounds wonderful, but we’re sceptical about how this would play out in reality. Surely, this is going to be difficult to prove for Freelancers … unless it relates to a ‘permalancer’ who all of a sudden stops getting work after lodging complaint.

There has always been a law against workplace retaliation, but sadly we know that it exists (we hear it year in and year out from respondents to our annual salary report). For Employees it may be easier to prove if as a consequence of them lodging complaint they’ve been  been fired, demoted, disciplined, given a negative evaluation, their job has been changed, salary has been reduced, or there are material changes to their employment agreement. But for freelancers, often working on an ‘at-will’ basis, we’re struggling to see how this is going to be an easy thing to prove. If you’re an attorney we’d love to get your input on this. At the very best, we can only think that this law, as it relates specifically to Freelancers, is merely a mild deterrent.

How to File A Complaint

As of yesterday (May 15), you can file a complaint for violation through the DCA’s Office of Labor Policy & Standards (OLPS), within 2 years for failure to provide a written contract and within 6 years of the violation for non/under-payment and/or retaliation.

To file a complaint with OLPS, a freelance worker may:

  • Fill out a complaint form available here or at nyc.gov/dca
  • Mail or hand deliver it to: OLPS at 42 Broadway, 9th Floor, New York, NY 10004 or email it to: freelancer@dca.nyc.gov.
  • Call 311 and say “Freelance Workers.”
  • Visit OLPS at 42 Broadway, 9th Floor, New York, NY 10004.

Additionally Freelancers Union also launched an IOS based app (coming soon to Android) for those wishing to connect with Attorneys offering advice in this area.

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Freelancers Union’s IOS based APP

What’s important about this new law is that Freelancers Union is currently lobbying other states for it to become common place in protecting the rights of Freelance Workers across America.

If you have any questions about this new law you can email the Department of Consumer Affairs at: freelancer@dca.nyc.gov or read the FAQs here.

*** JOIN US ON FACEBOOK LIVE THIS SUNDAY MAY 21 AT 1PM EST WHERE WE’RE BE DISCUSSING NON-PAYMENT OF FREELANCERS ***

 

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