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Freelancers Are Routinely Robbed Of Wages. New Legislation Could Improve Things

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For millions of freelance workers in the gig economy, delayed and even stolen wages are a routine hardship that leave many scrambling to make ends meet. More than half of all freelance workers have experienced wage theft at least once in their careers, and the majority find little protection or means of recompense from the government. That’s where new “Freelance Isn’t Free” laws come in to protect freelance workers from nonpayment. First passed in New York City in 2017, Freelance Isn’t Free legislation has helped freelancers recoup hundreds of thousands of dollars in unpaid invoices over the last seven years. Now, backed by organizers at the National Writers’ Union and the Freelance Solidarity Project, local and state governments are looking to enact their own Freelance Isn’t Free laws. The Real News speaks with Eric Thurm of the National Writers Union and the Freelance Solidarity Project, along with Keisha “TK” Dutes of the Association of Independents in Radio.

Post-Production: Alina Nehlich


Transcript

Mel Buer:  Welcome back, my friends, to The Real News Network Podcast. I’m your host, Mel Buer. I wanted to take a moment once again to thank you, our listeners, for joining us week after week. Without you, none of this would be possible. Whether you’ve got our shows on while you’re making coffee in the morning, put our podcasts on during your commute to and from work, or give us a listen throughout the workday, The Real News Network is committed to bringing you ad-free, independent journalism that you can count on. We care a lot about what we do and it’s through donations from dedicated listeners like you that we can keep on doing it. Please consider becoming a monthly sustainer of The Real News Network by heading over to therealnews.com/donate. And if you want to stay in touch and get updates about our work, sign up for our free newsletter at therealnews.com/sign-up. As always, we appreciate your support in whatever form it takes.

Now, over 50 million freelancers participate in the gig economy in the US, and in 2023, it was projected to generate $455 billion. Many freelance workers work white-collar, freelance contracts across a number of industries; most notably tech, media, and other creative industries. According to one survey, over 50% of gig workers reported having experienced wage theft at least once in their freelance careers. Due to the nature of contingent gig work, it can be difficult to compel employers to pay their freelancers once the project has been completed.

Oftentimes, freelancers are left in a lurch after working for weeks or months on a contract and find themselves unable to reach employers who owe them payment, sometimes to the tune of thousands of dollars. That’s where Freelance Isn’t Free comes in: Legislation aimed at protecting freelancers from non-payment by unruly employers. First passed in New York City in 2017, Freelance Isn’t Free legislation has helped freelancers recoup hundreds of thousands of dollars in unpaid invoices over the last seven years.

Now, backed by organizers at the National Writers Union and the Freelance Solidarity Project, local and state governments are looking to enact their own Freelance Isn’t Free laws. With me today to discuss all this are Eric Thurm and Keisha Dutes. Keisha “TK” Dutes is an audio producer, executive producer-educator, and on-air talent with experience spanning terrestrial radio, online, and podcasts since 2005. Her life in audio is all-encompassing. Her most recent offering on NPR, Life Kit, is about how to mind your business. Currently, she is helping people bring their podcasts to life via her company, Philo’s Future Media. TK also serves as a board member for the Association of Independence in Radio.

Eric is the campaigns coordinator at the National Writers Union and member organizer with the Freelance Solidarity Project, and organizations that have advocated for Freelance Isn’t Free legislation in places like New York State and Illinois. Welcome to the show, guys. Thanks so much for coming on this morning.

Keisha “TK” Dutes:  Thanks for having us.

Eric Thurm:  Happy to be here.

Mel Buer:  To start our conversation today, it would be important for our listeners to get a better understanding of who and what Freelance Isn’t Free legislation is for. Eric, can you give us a brief overview of what this legislation does for independent contractors or freelancers in places like New York State?

Eric Thurm:  Yeah, absolutely. So Freelance Isn’t Free, or the various Freelance Isn’t Free laws that have been passed across the country, establish some very basic, much-needed protections for freelancers and other independent contractors. That includes people who work in media, but it also includes domestic workers, photographers, and people doing different freelance work. The laws vary a little bit from place to place, but the main tenets are one, you have the right to have a written contract that lays out the terms of your work. Two, you can’t be retaliated against for attempting to negotiate the terms of that work. And three, maybe most importantly, you have to be paid on time for your work, generally speaking, within 30 days of completing the work.

Different states and cities have different ways of going after employers for that. Often when I say that stuff out loud, it sounds like it should be lower than the baseline. And it is in some ways, but the nature of how freelancers are treated by or not treated by labor laws is such that that’s where we’re starting from.

Mel Buer:  Yeah. Generally, the nature of freelance media work is interesting. For our listeners who aren’t aware of how it works, oftentimes, it’s per piece or project. So what happens with freelance work is say, for example, as a writer – I was freelancing two years ago – If I had an idea for a story, I could do a little bit of work on it and then I could start pitching it to editors. What that means is I would be sending cold emails to editors at various publications with a pitch that says, hello, I’m so and so, here’s my experience. Here’s the story that I’ve started working on. Is this something you would like to publish? I’m planning on writing 1500 words or what have you. The amount of time that it takes for an editor to get back to you can be anywhere from six hours to six months to never.

That’s the nature of a lot of freelance media work, is not having a sense of any guarantee that your work is going to be accepted. If it is accepted, that’s great. Then you usually negotiate a rate, which for freelance journalists who are writing is normally criminally low. We’re talking cents to a word, even though it should probably be one to two or $3 per word. And then you land on a rate and you work on the piece. Now, the rate is, that’s it. That’s the money that you get. You could work on a piece of journalistic writing for two to three weeks, turn it in and whatever you have negotiated is the rate that you get. So if you negotiated $400 for it, it’s $400 for two weeks worth of work. Oftentimes, publications do not pay upon acceptance of a pitch. They pay you once they get the piece and they publish it. So it could be anywhere from two to three weeks to however long it takes to go through the editorial process to however long it takes for them to schedule the piece to see your money if they pay you.

I was an organizer with the IWW Freelance Journalists Union. We have used the Freelance Isn’t Free Act before when folks have not been paid, and it still can take anywhere from six months to a year for a publication to respond to pay its people. And that’s when you’re pushing the legal buttons to make sure that workers are getting paid in a timely manner. So for our listeners who aren’t aware, that’s what the freelance media world looks like; It looks like that across the board. I’m sure, TK, as a podcast producer, you have very similar things. You’re contracted per episode or maybe per season and you’re paid when that episode airs is my guess, right?

Keisha “TK” Dutes:  Yeah. It depends, of course. Yeah. A lot of people have been a little more, I don’t want to say flexible, but they’ve been playing with the numbers more lately. So you get per episode, but maybe you get half when half of the thing is done and then the other half when it’s over. Or if you have six episodes, They’re just making shit up now. Excuse me. It’s whatever.

Mel Buer:  And the process is a long process. We’re not talking about recording something and throwing it up. As someone who, prior to –

Keisha “TK” Dutes:  Research…

Mel Buer:  – Prior to working here, I did my own podcast, which I will probably never do again because it’s so much work. There’s research, there’s booking talent, there’s doing all that, but there’s also editing on the backend if that’s something that you do as well, and making sure it sounds good. And thank God for the studio here. Many thanks to the silent studio partner who’s listening to this because I am not good at it and it’s good work. You know what I mean? It’s work that should be paid and it should be paid in a timely manner. I’m sure, Eric, as you know, the National Writers Union has probably got its own little whisper network of which outlets are good to work for and which aren’t. And freelancers stay aware of that. You’re not going to get good work if you’re not going to pay your workers, and just because they’re freelance workers doesn’t mean that you should take advantage of their flexibility. Am I right?

Keisha “TK” Dutes:  Yeah. Myself and Eric were on a panel not too long ago, and one of the panelists said, the whisper network goes both ways. So as much as we are trying to keep folks informed, there are folks, and there’s always been folks, talking about whether are they difficult to work with. Does she play well with others? And that is what has been keeping this epidemic of nonpayment alive and this shit is more catching than COVID. This is the epidemic of nonpayment, y’all. I’m afraid all the time that even talking on this podcast or panels or whatever, that somebody’s going to be like TK, you don’t want to f with her because she’s going to talk about you or report you or whatever. And I’m like, you didn’t pay. You did the bad behavior. You are not a good guy.

A lot of folks like myself, people who work freelance, or anyone with a job that is in the power structure of being the employee, are scared to death of saying something because we might not work again and how we’re perceived in the industry. So at this point, here I am.

Mel Buer:  That’s the cool thing about legislation like Freelance Isn’t Free, is that it takes this space where you’re worried that you’re going to be branded difficult for sending too many emails about nonpayment of invoices to the tune of tens of thousands of dollars sometimes per person. We’re not just talking about, for me, not just in my work. $400 in comparison is something that I can sometimes work around. But when you’re working on long-term projects or you have a long piece or multiple pieces that you’ve contracted to publish with a certain place and they haven’t paid you for six months to a year, those invoices stack up and it’s a lot of money. It’s a lot of money and it’s a person’s livelihood.

Maybe, Eric, you can speak more to the finer points of what this legislation can do to protect workers from being labeled that. The toolbox gets passed to the hands of a city council, for example. You can then point to a law that says, it’s not me saying this, it’s the law saying this. And also, protecting workers from souring those relationships because you can begin to pull in other professionals to help you navigate what can be a thorny conversation about money.

Eric Thurm:  Yeah. The law does a lot to reduce that type of friction. There definitely are cases where people are intent on exploiting people and in that case, there’s nothing that you could do to stop people from shit-talking because they are bad actors. But for the vast majority of people in the situation where I would say, not that the employer necessarily is well-intentioned but where they have convinced themselves that they are justified in delaying your payment, the law goes a long way in a lot of different ways. Part of that is like you were saying, having people whose job it is to handle that. Whether – In New York City which was the first of these laws – That goes through the city’s Department of Consumer and Worker Protection, and there are people whose job it is to help freelancers navigate those situations.

In New York State and Illinois, which both passed state laws that go into effect later this spring, that’s both in the Attorney General’s office. In addition to having people who can help take that heat, one of the important things that the law does is it gives those agencies the ability to bring together groups of people who are dealing with the same type of non-payment. You were describing the situation of being a freelancer where you’re pitching something to an editor and then they give you the rate and you do the work. And that is one of the more common structures of a freelance work relationship where you only have one contact at the place that’s paying you. You don’t know the people who are your coworkers, you don’t know what their working conditions are, and you don’t have a shop floor so you can’t talk about them.

So you could be in this situation where you’re thinking, oh, I am getting screwed on this and you have no idea that there are 50, 100 other people that are in the same boat. And the employer wants to keep it that way. But one of the things that the law does and that these agencies are able to do is help to put together these groups. So last year, New York City settled its biggest Freelance Isn’t Free case since that original law was passed, or went into effect, back in 2017, which is for this French publisher called L’Officiel. NWU helped put that group together. 40 freelancers are getting paid $275,000, or something like that. That is more than double the amount that all of those people were collectively owed, some of them hadn’t been paid for years. And it is a level of victory and a level of people being made whole that you wouldn’t get if people remained isolated the way that the employer in a lot of these cases would like them to be.

Keisha “TK” Dutes:  Right. Isolation is the name of the game, even at a place where … They find ways where there is a shop floor or a Slack community where I work with you, but we’re still remote, but we can go on WhatsApp or Signal and talk because I can DM you. But the isolation is so crazy. After I spoke about it the first time, I found out that yet another one of my coworkers from the same place found themselves in a nonpayment issue with the same people. And I’m like, I wouldn’t have known unless I said something. So isolation is the name of the game, whether it’s via email or talking lots of language that makes it sound like you’re the only person, and then you start talking and it is way more than one person.

To the original point, does it absolve you from doing all the emails? Absolutely not. It helps you to have your things in a place that’s official because it also takes you a while to hear back from the city, the state, or whoever. It’s like, Hey, you’re on the record. When your teacher used to say, I’m making a mark in your notebook; It’s the notebook for the jobs but you still have to be persistent and you still have to find other ways because you’re in queue at that point.

Mel Buer:  Yeah, that’s a good point to bring up, particularly in the context of a wider labor struggle. We’ve seen, and I cover a lot of this here at The Real News, we’ve seen a lot of workers who have fought for better wages across industries. And because of the nature of freelance work and the nature of how independent contractors are sort of classified within the broader labor law in this country, you just saw with Prop 22 in California app-based drivers who were fighting for health insurance from Uber because they felt they were classified as employees. And Prop 22 essentially classified them as independent contractors using a service so that Uber didn’t have to pay them, essentially. So you see these companies that are trying to, and in some places, succeeding to devalue the nature of labor rights and law in this country, as if they haven’t been doing this for decades.

But it’s heartening to see – Especially in a mostly unorganized space like freelance creative or white-collar work, which is the primary focus of our conversation today – That movement towards better protections for the workers who it’s not possible to be represented necessarily by a shop floor union because you’re not an employee of that particular shop, a full-time employee, classified as. It’s good to see this and it’s good to see that from my time in the IWWFJU, seeing how it works in New York City to see it expand from New York State to Illinois. Eric, or both of you, if you want to give me some thoughts about what’s the process here, how are we expanding these to other states? Is there a blueprint that other interested individuals want to follow in their own states, in their own cities? Is there a specific way that we can turn this into a bit of an organizing handbook for any of our listeners who want to see that replicated where they live?

Eric Thurm:  That definitely is a huge part of why we are doing this. NWU and the Freelance Solidarity Project, the Digital Media Division at NWU, led or helped lead the coalitions to get these laws passed in New York State, in Illinois, in Columbus, Ohio, and in the city council in Los Angeles. Right now, we have active campaigns in New Hampshire and in the California state legislature. So there is this effort to build a lot of that capacity and to make these protections normal in as much of the country as possible. In terms of having an organizing template, I would urge people to get involved in NWU. In the legislative work more specifically, it’s almost entirely member-led. And to the extent that there are replicable steps, a lot of that comes from talking to other people who have been through that process.

It’s like the cliche ‘all unhappy families are unhappy’ in the same way but for local and state legislatures so much of that work is going where you are to learn more about what weirdos are ostensibly representing you. And is there somebody who is either willing to be an ally or champion for freelancers or someone that you can at least hold your nose and work with? Then applying both these broader organizing principles and learning more about that specific context. Balancing those things is also what is happening, what it is like to be a freelancer in general, and that you have an industry that is the same and treats people shittily the same way all over. But at any given company or any different section of the industry, it is helpful to have people who know more specifically what’s up. One of the powerful things that we’re doing is trying to bring those things together in each of the campaigns.

Mel Buer:  For many of our listeners, particularly, I would say probably our younger listeners, have you ever called a representative’s office and said, hey, I got a crazy idea for you? Oftentimes, phone calls like that can happen. When I was living in Omaha, Nebraska, it was a very similar thing where sometimes you can send a DM to your representative on Twitter and say, have you thought of something like this before? This is something that’s happening to me. I voted for you last year, or I live in your district, and being able to open up that conversation and figure out a way to begin to build a coalition around legislation like this. Eric, go, yeah.

Eric Thurm:  Even if you, correctly, are pretty cynical about that, one of the most important things to remember is that in almost every case, the people that you are talking to desperately would like to be in front of a local news camera. So one of the things that you write, you both are like we are doing this thing that is meaningful, that will be helpful for constituents, that your constituents want, and that is an opportunity for you to talk about this good thing that you’re doing for people. It’s not a thing that we’re asking you to do out of the goodness of your heart; It’s a thing that is a set of strategic decisions that you are making as the organizers and that they are making as the politicians. In a lot of cases, those incentives align enough to get this thing done.

Mel Buer:  Fantastic conversation. We’re getting down to the last couple minutes here of our interview, but I wanted to kick it to you, TK, and get your final thoughts. Is there something that we haven’t touched on in terms of organizing this coalition-building that you think is important for our listeners to know?

Keisha “TK” Dutes:  Yeah. We’re talking about conventional organizing, law, and stuff like that but it starts even earlier. When a company is not paying you, don’t keep doing the work. I even fell into that trap. I was like, well, I guess it’s coming. My first red flag was the first payment was late. And because we had a relationship – I used to work full-time for them, then I got laid off and then I was contracted – So I’m like, that’s not going to be me. Nope, it was me. Then after the first batch of invoices was four months late, they stopped paying at all until January of this year – 2024. So stop doing the work and excuse yourself from the situation. These employers, jobs, and places you work are not your family. Even your family; A lot of people will ice their own moms out before their employers. Listen, ice everyone. Everyone’s dead to me now.

The other thing would be, if you have the privilege of bandwidth to refuse or to do certain things, if you are blessed to have an abundance of jobs, do not allow the late guy to slide. That’s another thing that a lot of folks do. A lot of folks, they’re like, that’s not my fight. And I’m like, it is your fight because now you leave it up to a person like me that doesn’t have the privilege of bandwidth to come and be on a podcast to do a panel, but you’re quiet on the side, didn’t get paid, and you’ve moved on. And I’m like, how do you move on from losing thousands of dollars? That’s crazy. You already got a new job, I don’t have shit. You need to speak up. I don’t need to be the one speaking up all the time. So if someone’s listening to this and you are like, well, I don’t know if it’s worth it to chase them, you still worked, chase them. Say something. That is my top, number one pet peeve. It’s not even a pet peeve, it’s a peeve peeve.

Mel Buer:  Right. And a good lesson if you’re getting fucked over is to say something. It’s the same reason why bosses in “regular” shops don’t want you talking about your wages because they don’t want you to say anything. If you do, then other people are going to go, well, hey, that’s fucked up. That’s not good. Hold on. We should do something about that. And they can no longer act with impunity, which is a big lesson of any podcast that I do on labor, is that if you talk to your fellow workers, you can get some shit done. And in this case, you can make laws happen.

So thank you so much, both of you, for coming on. I wish we could have a longer conversation but you’ll have to come back on whenever you do have the bandwidth, TK. We can talk about freelancing in general or work in general.

Keisha “TK” Dutes:  Absolutely.

Mel Buer:  And Eric, thank you so much for coming on, and I am excited to see what the NWU is going to be doing in the future. I live in Los Angeles, so seeing the city council pass that Freelance Isn’t Free ordinance, chef’s kiss. I didn’t even realize they were doing it. I was very excited to see that happen. So again, thanks so much for coming on, guys, and I hope you enjoy the rest of your day.

Keisha “TK” Dutes:  Thanks for having us.

Eric Thurm:  Thank you.

Mel Buer:  That’s it for us here at The Real News Network Podcast. Once again, I’m your host, Mel Buer. If you loved today’s episode, be sure to subscribe to the podcast to get notified when the next one drops. You can find us on most platforms, including Spotify and YouTube. And if you’re coming to us via YouTube, feel free to leave us a comment, and don’t forget to subscribe to the channel. If you’d like to get in touch with me, you can find me on most social media, my DMs are always open, or send me a message via email at Mel@therealnews.com. Send your tips, comments, questions, episode ideas, or gripes. I’d love to hear from you. Thank you so much for sticking around and I’ll see you next time.

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