Fashion Models: employees or independent contractors?

 
Image: Carmen Caserta; Colette, Paris

Image: Carmen Caserta; Colette, Paris

 
 

Fashion models might be entitled to more employment protections than the fashion industry would like to admit. This is because the modeling profession more closely resembles an employee-employer system than it does a true independent contractor-client structure.

Employee vs. independent contractor in New York

In New York State, courts consider three overarching concepts in determining whether a hired party, including a fashion model, is an independent contractor or an employee. Those three concepts are:

  1. Supervision

  2. Direction

  3. Control

Generally, the more supervision, direction, and control the hiring party - whether a modeling agency, fashion house, independent fashion designer, or fashion photographer - has over the model, the more likely the model will be considered an employee. Conversely, the less supervision, direction, and control the hiring party has, the more likely the model will be considered an independent contractor.

New York courts look to numerous factors when determining how much supervision, direction, and control the hiring party has in the relationship. No one factor is required or singularly determinative; rather, courts look holistically at the specific circumstances and consider all relevant factors. Some of these factors are bulleted below.

Independent contractor

In New York, a fashion model is more likely to be classified as an independent contractor if she:

  • Has an established independent business wherein she offers modeling services to the public

  • Advertises her modeling services in print and/or electronic media

  • Uses personally identifying business materials such as business cards and letterhead  

  • Pays her own business expenses, such as meals, office supplies and equipment; and transportation to and from castings, photo shoots, and fashion shows

  • Keeps her own office or studio space

  • Sets her own hours

  • Negotiates and sets her own pay rates

  • Is free to accept or refuse offers for modeling jobs at her own discretion

  • Is free to choose her own wardrobe, makeup, hair, and overall personal image

  • Uses her own personal methods when providing modeling services

  • Uses her own makeup, clothing, and hair-styling products on set

  • Provides modeling services under little to no supervision or direction

  • May choose to hire her own assistants

  • Is free to offer modeling services to multiple agencies or businesses simultaneously (as opposed to promising exclusivity to one fashion house, brand, or agency)

Employee

In New York, a fashion model is more likely to be classified as an employee if she:

  • Works specified hours determined by a modeling agency, fashion house, brand, or fashion photographer

  • Is paid a rate determined by a modeling agency, fashion house, brand, or fashion photographer

  • Is required to perform modeling services at a specified location

  • Must perform the modeling work in a manner directed by another party, such as a fashion photographer or fashion designer

  • Has her hair and makeup done by hairstylists and makeup artists hired by the fashion house or photographer

  • Performs the modeling work under the supervision and direction of a fashion photographer, modeling agency, or fashion designer

  • Is subject to performance reviews and evaluations from her agency

  • Must request permission for absences and time off

  • Is not allowed to work for competing modeling agencies or fashion houses

  • Receives benefits such as medical insurance, travel reimbursements, or a spending allowance

The modeling industry in operation

The modeling profession generally operates whereby a modeling agency retains a model through a modeling contract to perform modeling services for the agency’s clients, which can include fashion houses, independent fashion designers, photographers, retail companies, apparel manufacturers, or other third parties. The modeling agency matches models with clients by sending models on castings or auditions for jobs. When a model secures a job, the agency takes a commission of the model’s pay. Pay is generally determined by the client. Within this operation models typically have little to no control over:

  • The location of castings, photo shoots, or fashion shows

  • The hours during which castings and jobs take place

  • The clothes they wear for fashion editorials or fashion shows

  • Their overall “look,” appearance, and image on jobs

  • The fashion brands, advertising agencies, or photographers for whom they perform modeling services

  • The way in which they perform the modeling work (models are often directed to pose in certain ways and emote specific feelings or expressions)

  • Exclusivity; models are often required to be exclusive to one modeling agency

  • The amount they are paid for each job

But despite the typical characteristics of the modeling profession; i.e., the lack of the model’s ability to supervise, direct, and control her own performance, most modeling contracts between the model and modeling agency or other hiring party are titled and structured as independent contractor agreements rather than employment contracts. Why?

Liability. If modeling agencies or other hiring parties classified models as employees, these hiring parties would be liable to models for:

  1. Employment discrimination

  2. Wrongful termination

  3. Unemployment benefits

  4. Health and disability insurance

  5. Worker’s compensation

  6. Social Security, income tax, and Medicare tax

  7. State and federal wage and hour laws

  8. Workplace safety

  9. Workplace sexual harassment policies and enforcement

Structuring modeling contracts as independent contractor agreements gives modeling agencies and other hiring parties the opportunity to limit these liabilities.

Nekesha McCary vs. Direct Model Management: Courts look beyond the face of the contract

In 2015, a New York fashion model named Nekesha McCary sued her agency, Direct Model Management, for over $30,000 in back wages. She claimed the agency erroneously classified her as an independent contractor rather than an employee, resulting in illegal profits to the agency. The court weighed the factors (and others) listed above and found in favor of McCary, awarding her back wages, interest, and attorney’s fees.

This case is significant in its demonstration that even if a modeling contract is structured as an independent contractor agreement, courts will still examine the totality of the circumstances and consider all relevant factors to determine whether the model is entitled to the protections and benefits of the employee status.

Models and unemployment insurance

New York Labor Law §511 is specific about models being classified as employees under certain circumstances, but only for purposes of unemployment insurance.

The law specifies a two-part inquiry; both parts 1 and 2 must be met. A professional model may file a claim for unemployment insurance if she loses her modeling job through no fault of her own, if:

  1. The model either:

    a) performs modeling services for a hiring party (such as retail store, apparel manufacturer, advertising agency, fashion house, or fashion photographer); or

    b) whether or not the model performs services specifically for the entity, the model nevertheless consents in writing to allow the entity to use the model’s name and/or image in advertising; AND

  2. The hiring party:

    i) dictates the model’s assignments, hours of pay, or performance locations; and

    ii) compensates the model for the right to use the model’s name and/or image in advertising

How models can protect themselves in employment agreements

Models with independent contractor agreements can look to New York State’s Freelance Isn’t Free Act for their rights under New York law. Among other rights, models working as independent contractors have the right to:

  1. A contract in writing (if the service is for $800 or more) specifying certain information

  2. Prompt payment on or before the due date specified in the contract; or, if no due date is specified, no later than 30 days after services are completed

There are a few red-flag provisions hiring parties might include in an effort to preemptively substantiate an argument that the model is an independent contractor. Watch for the following:

  • Provisions that minimize the hiring party’s control over the photographic and creative process

  • Clauses that allow the model to be in control of hair/makeup/clothing

    • If hair and makeup services are made “available” or “optional” rather than mandatory, and the model chooses to utilize the services at the job, the employer will have a stronger argument that the model was an independent contractor

  • Clauses that describe the model has having an independent modeling business

Ideally, a professional model should have an attorney with knowledge of the fashion industry look over the hiring party’s proposed contract before the model enters into the agreement.

(This article is not meant as legal advice and is written for educational purposes only. If you need legal services, please contact an attorney).