In February, Randi Minetor was in the middle of writing two nature books, with four more under contract—all derivatives of previous work. But in March, her publisher furloughed its entire staff. Operations ground to a half. It’s anyone’s guess when and if things will snap back to normal.
All told, Minetor is $10,000 in the hole for the second half of her advances, not including royalties from her current books. Mix in some additional work for magazines and blogs for which she’s still awaiting payment, and that total rises to $14,000. She has no idea when, or if, she will be paid.
“I have very long-standing relationships with my publishers, and I have no reason to believe that they won’t pay me eventually,” she said. “But it’s scary. I’m particularly worried about whether or not I still have the contracts at all. The book industry is really struggling, and the magazines have just stopped.”
Nonpayment is a troubling trend on the rise
Since the start of the coronavirus outbreak, freelancers have seen an alarming uptick in non-payment. Employers big and small are citing COVID-19 as grounds to ignore payment deadlines or to skirt payments entirely. Freelancers for Equinox gym received a widely publicized email in March saying that they would not be paid until further notice.
“Even in the beginning of the crisis, freelancers began to reach out about not getting paid for work that they’ve completed in December, January, and February,” said Freelancers Union president Rafael Espinal in an interview. “Employers are using the pandemic as an excuse. It’s not okay.”
About 130,000 Macy’s employees received an email saying they would not be paid until May. One Macy’s freelancer, a Brooklyn photographer who asked to remain anonymous, said the non-payment policy trickled down to him, even though he did not receive the company-wide email. He is consulting a lawyer about recouping the $10,500 he’s owed for work performed in January.
“I’ve emptied my entire retirement,” he said. “I have $500 in the bank.”
If your client isn’t paying you, experts say you have recourse. Here’s what to do if you’re owed a pay-out for work.
That money is yours
No matter what clients tell you, non-payment for completed work is illegal, according to New York and Texas attorney J.R. Skrabanek. He identified three of the most common justifications for non-payment:
- I have to pay my staff employees first.
- I don’t have the money because of the virus.
- I hired you as a subcontractor and I haven’t been paid, so you can’t be paid.
“These are the most common things that people are hearing right now, and while they might sometimes be understandable, they’re not legal defenses,” he said.If you have a viable contract and performed the work, you are legally owed the money within the agreed-upon timeframe. If no timeframe was agreed upon, freelancers who live in New York City are owed payment within 30 days of they date the work was performed, according to the city’s Freelance Isn’t Free Act.
Espinal and Skrabanek advised freelancers to speak up to their clients about non-payment. Often, the issue can be resolved without courts or attorneys.
“By not speaking up, you’re screwing yourself,” Espinal said. “In a lot of cases, the employer will send a blanket email to everyone. Here, the squeaky wheel gets the grease. Be patient and calm and assertive.”
You might be able to negotiate a payment plan that works for your employer. “Some companies can pay out a portion of the money now and pay the rest later. A lot of this can be negotiated,” Skrabanek said. “It’s going to vary from circumstance to circumstance. If people will work with you, I am encouraging that.”
If employers are non-responsive, however, there are firmer measures you can take.
“Slowly ramp up the pressure. Follow up more often, make it more urgent, follow up higher up the chain, and eventually issue an ultimatum,” Skrabanek said. “The ultimatum can vary from case to case, but it’s most effective to demand payment by a certain date, with a threat to exercise all legal rights and remedies if payment isn’t received.”
Reach out for help
If speaking up doesn’t work, Espinal encouraged freelancers to reach out to the Freelancers Union and other freelancers facing similar issues.
“Begin to organize,” he said. “More likely than not you’re not the only person who’s being unpaid by the employer.”
In New York City under the Freelance Isn’t Free Act, workers have the option to report non-payment to the Department of Consumer Affairs, which will pursue action as a precursor to legal intervention. However, Skrabanek warns that the department is overloaded right now due to the pandemic.
If you have the stomach for it, put a call out on social media to see if you can join forces with other freelancers who’ve been stiffed by the same client. You can reach out to the Freelancers Union to find out if people are already organizing. If you’re forced to take legal action, you may be able to split the costs of hired counsel or arrive at a cost-sharing agreement based on the amounts you’re owed.
File a lawsuit
If all else fails, you may have to file a lawsuit to get paid.
“In my experience, filing the lawsuit is what prompts payment,” Skrabanek said. “A lot of people are hesitant to file because… they’re scared of the unknown and the costs and how it’ll shake out. But the vast majority of lawsuits will settle, or the employers will reach out and say, ‘Okay, let’s make deal.'”
Even if the employer is filing for bankruptcy, you can file a lawsuit, according to Skrabanek. The suit will make you an official creditor in the bankruptcy, which means you’ll have a legal right to payment—although this doesn’t guarantee payment, unfortunately.
In New York City, a winning verdict means that a freelancer’s employer must foot his or her attorney fees too. Unfortunately, for everyone else, filing a lawsuit can be time-consuming and expensive.
“If you’re in other states, it does become a lot more difficult and the only real recourse is taking legal action at small claims court, which for many people isn’t worth the time or money,” Espinal said. “That’s why we encourage freelancers to be persistent.”
Advocate for freelancer rights
Espinal encouraged freelancers to stand up and fight not just for their payment, but also for legal protections going forward. New York City is currently the only major city with dedicated freelancer payment protections, and many of its workers are still facing problems.
“When things settle, I want to travel across the country and encourage freelancers in those cities to advocate for these laws to be passed through city councils,” Espinal said. “This pandemic has only highlighted all the unfairness that freelancers face and the need for these laws to protect them.”
Halley Bondy is a professional freelance writer, journalist, editor, producer, and mom based in Brooklyn. Her work has appeared in NBC News, Daily Beast, DAME Magazine, Eater NY, Bustle, Romper, The Outline, Oxygen, CMT, Scary Mommy, Vice, New York Daily News, MTV, and more. She writes scripts for the “Masters of Scale” podcast, and had written for “You Must Remember This.”
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