Business of Art | Freelancers, Know Your Rights

You’re an independent contractor, but that doesn’t mean you’re on your own if you experience discriminatory behavior.

Are you an artist and an independent contractor? You’re not alone. Artists—sometimes called the “original gig economy workers”—are 3.5 times more likely to be self-employed than the general United States workforce. While freelance or contract work can offer flexibility and a greater sense of independence and ownership over your work, it can also leave an individual vulnerable to changes in the economy on a broad scale, and to misunderstandings and even abuses within an agreement, on a smaller scale.

Protecting Yourself

There is a great deal of literature on surviving and thriving as a freelancer, covering a range of topics like time management, rate negotiations, and contracts (to sum up: use a contract! And take advantage of easy-to-use online templates and guidance, and possibly legal counsel). This article, though, will focus on a few specific gaps in legal protections that result in fewer protections against discrimination for independent subcontractors. We do not intend to offer legal advice, but we would like to recognize that, according to informal surveys of certain groups, more self-employed workers are sexually harassed than traditional employees. We encourage freelancers to approach their work agreements carefully and wish to share ideas for protecting oneself as far as possible.

Why would freelancers not enjoy the same legal rights as employees? This requires a bit of history. When the National Labor Relations Act (NLRA) was passed in the 1930s during the height of the New Deal to protect workers from unfair labor practices, independent contractors were not given the same protections. Many experts explain this exception by pointing to the demographic makeup of independent contractors at the time—mainly agricultural and domestic workers who were people of color and women. This division between employee and independent contractor remains in other legal protections for workers, like the Equal Employment Opportunity Commission (EEOC) regulations. In short, a freelancer who experiences discrimination or harassment may have less recourse to legal action. If the harassment in question crosses into criminal activity, however, you do still have access to enforcement of the law.

Before reaching that point, there are steps you can take to safeguard yourself. Keep reading to learn how to protect the most important component of your business: you.

1. Verify Your Employment Status

If a worker is operating with the title of “consultant,” “contractor,” or “freelancer,” it does not automatically mean they are not an employee. This is the case even if the contract describes the work as independent. Various factors of the working relationship dictate a client or company’s responsibilities and an individual’s coverage under EEOC regulations. “The general rule,” according to the IRS, “is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work, not what will be done and how it will be done.” Read more about the IRS’s guidelines on classifying someone’s employment status, and be sure to research the regulations for your state as they may differ.

All this is to say: if someone who is hired as a contractor experiences discrimination, and could be shown to qualify as an employee, they would be eligible for EEOC protections. This classification also impacts Social Security and Medicare taxes withheld on an individual’s behalf and a company’s obligations around healthcare.

2. Write a Contract that Gives You an Out

Any contract worth its salt promotes clarity in terms of the conditions that are acceptable and unacceptable for your work. As attorney Anibal Luque advises for Creative Independent, a good contract will describe, at minimum: the goods or services, the term, or specified date range, the payment method, and a clause that specifies what is cause for termination of a contract. You can take the termination clause one step further by adding an anti-discrimination or harassment clause. Says Michelle Nickolaisen of Quartz at Work: “If your contract binds you to following through with the project, and you walk away mid-project due to discrimination or unwanted advances, you can be legally liable because then you’re the one in breach of the contract.” But, if you include a clause specifying that you can exit an agreement in the event of specified discriminatory behavior, you may be able to walk away “and bill for hours spent.” We recommend running this language by an attorney.

3. Read Up on Local Regulations and Get Involved

Across the country, creative entrepreneurs are joining forces with freelancers in various industries to push for greater legal protections and to strengthen new and existing networks that facilitate resource-sharing and collaboration. Organizations like the Freelancers Union work to give self-employed workers “a voice through policy advocacy, benefits, and community,” and local officials in places like Kansas City are working to help women and people of color excel in the gig economy.

In California, advocates are pushing to protect the findings of a state Supreme Court ruling that clarifies the distinction between employee and contractor, and regulations in California, Pennsylvania, and New York offer some protections to the self-employed.

In New York City, two new laws exist to protect the safety of freelancers and their right to get paid in a timely manner. The first, the New York City Human Rights Law, protects New Yorkers (including freelancers and interns) against many kinds of discrimination. Some of the protections apply to businesses with four or more employees, but many apply to all businesses.

The second is the Freelance Isn’t Free Act, and it’s meant to address another major source of anxiety many freelancers have experienced: a lack of control over when and whether you are paid. The law protects the rights of freelancers to a written contract, timely and full payment, and protection from retaliation for individuals who exercise their rights under the Freelance isn’t Free Act, regardless of immigration status.

You can join the Freelancers Union and Freelancers Hub, a community space for New York City’s freelancers, in celebrating the second anniversary of the Freelance Isn’t Free Act in 2019. Email [email protected] to share your story of how you used the law to get paid. For every legislative win or recognition of the need for legal protection for independent contractors, there should be a celebration.

– Mirielle Clifford, Program Officer, Online Resources

To read more articles about the topics that impact you as an artist, visit the Business of Art section of NYFA’s website. Sign up for NYFA News and receive artist resources and upcoming events straight to your inbox.

Images: Sinan Tuncay (Fellow in Photography ‘16); Katie Bell (Fellow in Painting ’15)