The Fashion Workers Act — Addressing Dismal Working Conditions in a Glamorous Industry

Submitted by the Model Alliance

New York Fashion Week hit NYC in mid-February with 49 runway shows featuring hundreds of models sporting designs by fashion’s newest talent as well as industry stalwarts. But beneath the glitz and glamour is a lot of underappreciated, challenging work, often performed under exploitative conditions. Models rallied during Fashion Week to draw attention to new legislation that could end some of those predatory and problematic practices.

The Fashion Workers Act, a proposed New York State law, would regulate model management agencies that have operated largely without scrutiny for decades by exploiting legal loopholes. In addition to checking the power of the middlemen who book models for photoshoots and fashion shows, the bill would establish requirements for overtime pay and create a formal process for filing worker complaints. State legislators amended the bill last month to require fashion companies to obtain written consent to use a model’s digital replica, as more designers and brands use artificial intelligence to supplement traditional photography.

Models are considered independent contractors under the Fair Labor Standards Act, so their jobs don’t qualify for certain federal workplace protections and minimum wages, and lawyers and labor experts debate whether models could form their own union. Model management agencies should, in theory, protect the workers they represent from unsafe conditions and ensure they are fairly paid. In reality, many agencies don’t act in their models’ best interests. Agencies often don’t want to “ruffle feathers” when clients violate contracts or models feel uncomfortable on set. And speaking up can be risky because some agents will retaliate and refuse to book models who are considered “difficult to work with,” while keeping them in exclusive, auto-renewing contracts that are hard to get out of.

“The level of power and control that modeling agencies exert over their models goes far beyond the relationship between, like, a company and a gig worker,” said Sara Ziff, executive director of the Model Alliance, a worker-led nonprofit that supports passage of the Fashion Workers Act. “It’s not unusual for models to end up working in debt to their agencies, the very people who are supposed to be representing them,” Ziff said.

Talent agencies must operate under certain restrictions, like charging no more than 10% on commissions, but Ziff said that to get around these kinds of caps, modeling agencies falsely claim that booking gigs for models is a secondary priority to providing them with advice. She has seen modeling agencies charge models they represent 20% commission fees while also charging 20% commission to the companies that book the models. Agencies often don’t share contracts with models, so they don’t know how much they’ll be paid after commissions and additional fees.

Ziff said should the Fashion Workers Act become law she and other fashion workers can push for similar rules and regulations in other markets. “It’s about establishing baseline protections for people who have very few,” Ziff said. “I see this as a first step towards having basic rights that are so long overdue.”

The fashion industry is a $2.5 trillion global industry, and New York is its center in the U.S. Boasting world-class creative talent and best-in-class production companies and fashion and design schools, New York’s fashion industry employs 180,000 people, accounting for 6 percent of the city’s workforce and generating $10.9 billion in total wages. New York Fashion Week – a semiannual event – draws more than 230,000 visitors to the city and has long been a major economic driver, generating close to $600 million in income each year. That is more than the economic impact of Milan, Paris and London’s fashion weeks combined, and it’s almost double the revenue generated by the 2014 Super Bowl at the MetLife Stadium.

And yet, the creative workforce behind the industry’s success – namely, models, influencers, stylists, makeup artists, hair stylists, and other creative artists – are not afforded basic labor protections in New York. This discrepancy is due to the multi-level structure of hiring of these professionals as independent contractors through management companies. Unlike talent agencies, modeling and creative agencies are considered to be management companies under New York State General Business Law §171(8), known as the “incidental booking exception,” allowing them to escape licensing and regulation. In almost every case, agencies are granted “power of attorney” as part of their agreement to represent talent, giving agencies power to accept payments on behalf of the model, deposit checks and deduct expenses, as well as book jobs, negotiate the model’s rate of pay, and give third parties permission to use the model’s image.

This leaves models and creatives unprotected outside the terms of their individual contracts – which tend to be exploitative and one-sided in favor of the management company – and creates a lack of financial transparency and accountability when it comes to issues of both payment and sexual abuse. For example, models and creatives often wait months, even years to get paid for jobs through management companies, which deduct various unexplained fees from their earnings, in addition to a 20 percent commission both on the model’s fee and the client’s payment. Model management companies crowd young models in model apartments, where they warehouse anywhere from six to 10 young women in one apartment and charge them each upwards of $2,000 a month for an apartment worth far less. Models are held to exclusive, multi-year contracts without any promise to book work or be paid in a timely manner, which ensnares them in cycles of debt and makes models highly vulnerable to other forms of abuse, including human trafficking.

The Fashion Workers Act would address these issues by closing the legal loophole by which management companies escape accountability and create basic protections for fashion’s creative workforce. The bill would require management companies to do the following:

• Accept responsibility to act in the best interests of their talent
• Pay models and creatives within 45 days of completing a job
• Provide models and creatives with copies of contracts and agreements
• Notify former models and creatives if the management collects royalties from a talent they no longer represent
• Register and deposit a surety bond of $50,000 with the NYS Department of State
• Conduct reasonable inquiry into health and safety on set
• Discontinue bad practices such as
• Collecting signing fees or deposits from models
• Charging more than the daily fair market rate for accommodation
• Deducting any other fee or expense than the agreed upon commission
• Renewing the contract without the model or creative’s affirmative consent
• Imposing a commission fee greater than twenty percent of the model or creative’s compensation
• Forbid the management company from taking retaliatory action against any model or creative using the bill to file a complaint
• Forbid the management company or client from engaging in discrimination or harassment any kind against talent on the basis of race, ethnicity, and other legally permissible categories under Title VII of the Civil Rights Act, as amended.