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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Here's a stat. Roughly a third of working Americans are working freelance or on contract jobs. That's over 100 million people working in jobs with no steady benefits or paid time off. That number has ballooned during the pandemic as more permanent positions have dissolved and more people have also quit seeking the flexibility of the gig economy.

Whether you sought freelance work by choice or you've been pushed into it, anyone who was so much as dabbled in the freelance life knows that actually getting paid from chasing down invoices to negotiating fair rates can be labor itself. According to a 2019 study, a collaboration between Upwork and The Freelancers Union, 74% of freelancers have reported experiencing late or non-payment, 59% of freelancers report that they live paycheck to paycheck, and freelancers lose on average almost $6,000 a year to actual wage theft.

Only 28% of freelancers say that they consistently have a written contract for work. In 2017, New York City passed The Freelance Isn't Free Act, which sought to address some of these issues from requiring a contract for jobs worth $800 or more, and putting in place formal action options for people who were stiffed altogether by employers. Now, some state legislators are hoping to broaden protections to the entire state and make them considerably stronger in the city as well.

Here to tell us about the bill, our state senator, Andrew Gounardes, who has co-sponsored the bill, and Larry Goldbetter, President of the National Writers Union, Local 1981 will also talk about a few more labor-related bills working their way through Albany. Senator Gounardes, welcome back to WNYC. Larry, welcome.

Senator Gounardes: Thank you, Brian. It's great to be here.

Larry Goldbetter: Thank you.

Brian Lehrer: Senator Gounardes, walk us through this piece of legislation. Since you represent Brooklyn, there's already this Freelance Isn't Free Act in place in the city. What would be new here in the city and outside the city?

Senator Gounardes: Great. We really want to take the successful model of the New York City Freelance Isn't Free Act and apply it to freelancers statewide. What we're trying to do here is a couple of things. Number one, we want to say that any freelancer who engages in work, $250 or greater, first of all, has to get a contract for that work if it's over a four-month period. The city legislation is $800. We want to actually make that standard a little bit lower to include more protections for more workers.

Any freelancer who does a project for $250 or more should have a written contract for it. There needs to be terms in that contract that says that the person contracting for the service has to make payment within 30 days to the freelancer, there needs to be special stipulations in the contract that the clients can't require freelancers to accept less than what the contract stipulates in exchange for timely payment.

In other words, we'll pay you now, we'll take 80% or we'll pay you the full amount in three months' time. It also says that clients can retaliate against freelancers for pursuing payments, and that freelancers have legal recourse to take someone to court for violating the contract if they don't get paid, and if they are successful in court, they will collect double damages, as well as attorney's fees. The last piece of this is that we are empowering the State Department of Labor to help enforce this form of wage theft which is happening all too often based on the stats that you cited earlier in your intro happening to too many freelancers across the state right now.

Brian Lehrer: Listeners, in a few minutes, we're going to talk to someone who's been able to bring legal action against an employer because of the 2017 New York City version of this law. We'll get a take on what's happening in the world of freelance writers from Larry in just a minute. Listeners, we also invite you to help us report this story. Are you a freelancer, a writer, an artist, any kind of freelancer who gets paid for your services for the short, medium, or even long term, in some cases?

We've heard the term "permalancers", people who really make a career as a freelancer. Have you faced problems when it comes to actually getting paid? Tell us your story, 212-433-WNYC, 212-433-9692. If you had to wait more than 30 days for your check, for example. Or were the terms of your payment changed after you completed your job, or maybe you weren't paid at all and there was wage theft in your case. 212-433-9692.

If so on any of those things, what did you do about it? Did you bombard the company with emails? Maybe you posted about it on social media, tried to shame them into paying you, or did you try to bring legal action yourself? Tell us your freelance horror stories or, for that matter, success stories. 212-433-WNYC, 212-433-9692 or tweet @BrianLehrer as this bill gets considered in the New York State Legislature. Larry, you worked for the National Writers Union. How much is non or late payment a problem in your industry?

Larry Goldbetter: Well, it's the business model, actually, and it's more common than not. I would just stress that for freelancers or workers, there are freelance workers, and there are full-time workers, but freelance workers are workers. This law will cover us under New York State Labor Law. It could be a first step in winning other protections as workers like unemployment compensation or workers' comp.

We're part of a coalition of unions that support the Freelancers Isn't Free law. The Graphic Communication Conference, [unintelligible 00:06:29], there's Joint Council 16, The New York Direct Coalition, which includes 32BJ, the Taxi Workers Alliance, the UAW, and more. We also have a broad coalition of creators: the Freelancers Union, the Authors Guild, the National Press Photographers Association, the Graphic Artists Guild, the American Photographic Artist, the American Society of Media Photographers, and more.

This is a huge issue that affects millions of people. If you want to be part of it, if you have a non-payment issue, if you want to help us go to lobby day in Albany to push this across the finish line, write us at nwu.org. If you want to join the union, join the Freelance Solidarity Project, go to nwu.org and click on Join Now. We have collected millions of dollars as a union over the years, but there are hundreds of millions of dollars that have gone uncollected.

On the one hand, we see the potential of a union, and on the others, we see a crying need to make this illegal, this practice illegal, and also to have a bigger and stronger union.

Brian Lehrer: One of the clauses of the bill is 30-day payment terms. Unless otherwise specified in a contract, clients must pay freelancers within 30-days of work completion. I think probably many of our freelance listeners have had to wait more than a month to get paid, unfortunately, but wouldn't think to use the term wage theft. When does it become wage theft, in your opinion, Larry?

Larry Goldbetter: Well, historically, we had to first prove that workers were misclassified, and New York State was the best in covering this, but whether you call it non-payment, or whether you call it wage theft, it's the same thing. Over the years, we've got accustomed to calling it non-payment or late payment, but it's the same thing. We've collected a lot of money on the client basically not honoring that contract. That's what we've used to be able to collect millions of dollars. When you don't pay, it's theft. The work is used, the work is published, the client makes money off of it, and the writer it's a full-time job trying to get paid. We say that the Freelance Isn't Free is past due, just like the checks that we're owed.

Brian Lehrer: Let's take a phone call. Michael in Harlem says he's been self-employed for 30 years. Michael, you're on WNYC. Thank you for calling in.

Michael: Brian, good morning. Thank you for taking my call. You are my hero. As a self-employed person, for some 30 years, you're like a family member to me, because you're always on when I'm working. [laughs]

Brian Lehrer: Too kind, but thank you very much.

Michael: Point to make as well is that I heard the $6,000 figure earlier, and actually it's much higher than that because what your clients don't realize is if you are not paid in a timely manner, you cannot pay your bills in a timely manner. You accrue late fees with utilities, with phone bills, your credit rating is jeopardized. It's a lot higher than the figure of merely just not collecting, but the damages that come to a self-employed person for not being able to collect on time is also something to consider. I told my fellow creative colleagues for years, freelance should be stricken from the language because your working title should never have the word free in it. I do not work for free. I do think that there is some sort of messaging mistake when you introduce yourself to a potential client as a freelancer, I think they just hear the word FREE in all uppercase bold letters. I've never been a fan of that word. That's what I wanted to say.

Brian Lehrer: Michael, thank you.

Michael: Thank you very much.

Brian Lehrer: Thank you for all of that and for the nice words at the beginning of your call. Call us again. Rebecca in Park Slope, you're on WNYC. Hi, Rebecca.

Rebecca: Hi. Huge fan, and first-time caller, but long-time listener. I was telling your screener that I've actually had my own company since 2016 doing basically freelance PR and marketing, but I've had multiple clients who have never paid. The fact is by the time that you get through and you have a friend or a lawyer go and tell them you have to pay, you're in the hole $10,000 or so. If you have an invoice that they owe $3,000, or $5,000 for by the time, you get to small claims court and go through all the process, it's not worth it. You basically are screwed. It's tough. I'm not the only person this has happened to. There's so many people who have just completely had to just not get a paycheck because of that.

Brian Lehrer: Senator Gounardes, you want to talk to Rebecca?

Senator Gounardes: Yes, Rebecca, you just described exactly why we are doing this legislation and why it's important to do this statewide. No one should have to face the circumstance that you just described for providing services to somebody else. In the bill language that we've drafted, which is based already on the New York City model, so if you're having this issue in New York City, you already have freelance rights in the city, and that we can connect you to resources separately.

What we're saying is that if you go to court, and you are successful, or when you are successful, not only do you get double damages, so you get the $5,000 you're owed on the invoice, double that amount, plus all of your court fees paid for by the person you have to take to court. No one wants to have to go to court, no one wants to have to go through that whole process, but we are making sure that if it comes to that, that not only are you made completely whole, but then you actually get double what you're owed because you should not have to face this injustice or this indignity in the first place.

Brian Lehrer: Rebecca, thank you very much. Hopefully, something like that if you ever find yourself in that position again, we'll be there for you. She certainly talked about the financial difficulty of doing that. Larry Goldbetter from the National Writers Union, I wonder if you could talk about that, too. The obstacles to going to court to try to collect wages that are owed to you. It costs money to hire a lawyer, and usually, freelancers are being paid little enough for the work that they do that if they have to pay a third of it to a lawyer from a lawsuit, between the time and the money lost, it's hardly going to be worth it in a lot of cases. Would this bill do anything for that, in your opinion?

Larry Goldbetter: Yes, you just described it perfectly as did the caller. First of all, rates have been dropping, not rising. Freelancers are working for incredibly low rates and working incredibly long hours at incredibly low rates to try and put together enough to pay the bills. If you're owed a few $100 for a piece, you're not going to go to court for that because it costs you a few $100 just to walk in the courtroom. You have to go to small claims court, then you have to try and get a judgment there, then you have to try and enforce that judgment.

Even as a union, we've had victories in court that we weren't able to enforce because there was no money there, they had gone out of business or whatever. We had a case where we won a judgment for like-- I think it was $85,000 and couldn't collect it because the money wasn't there and it cost our union a lot of money and individually for representing a dozen freelancers. A freelancer on their own couldn't have come close to that.

Having a bill that makes non-payment illegal is a huge step that requires every freelancer to have a written contract is a huge step. So many freelancers right now write without contracts, or as I said, the rates are so low that they just get ripped off, and they don't have the finances, it's not worth it to go try and collect on that invoice.

Brian Lehrer: Let's see an employer's perspective. Laura in Manhattan is calling in. Hi, Laura, you're on WNYC, as we talk about the Freelance Isn't Free Act being debated in the New York State Legislature. Hi.

Laura: Hi. Thanks for taking my call. I am totally in support of this bill. I just want to say that first off. I used to freelance in the creative industry, but now I'm a small business owner, and I'm at WBE in New York City and registered in New York State. What I want to know is what are the protections for small businesses, who I can assure you many are saying the same thing that since the pandemic, we are not getting paid in a timely fashion. It can be 60 days, it could be 80 days, and then we really can't pay. We're not a big enough company that can pay our contractors, we don't usually use the term freelance, but our contractors until we get paid. It's a big conundrum, and I just ask the question to the senator, what are the protections for small businesses to get paid on time of the week and pass on those payments on time? Thank you.

Brian Lehrer: Senator Gounardes, talk to Laura.

Senator Gounardes: Laura, thank you very much for your support of this bill. I think the problem you're describing is exactly the same problem that we're trying to solve for freelance workers. What we have found in some of our conversations is that a lot of small businesses already do work with contracts and that a lot of the payment terms are baked into contracts. That's, of course, not universal, but certainly, at a higher rate than we see in the freelance space where oftentimes there are no contracts. I think it's like only 25% of freelancers in the state actually do get a contract for their work.

First and foremost, making sure that those contracts are being completed, and that the rights under those contracts are being enforced. I am certainly more than happy to take a look and work with any group of small business owners that continue to have a problem around getting paid for the services that they're providing, especially if there are gaps in the law that are currently not being filled either through existing contract law or other provisions that we can do to make sure that folks like you are also not getting left out because you have bills too, you have expenses too, you have to keep your lights on just like a graphic designer has to keep their lights on, just like someone else has to keep their lights on. Please reach out to my office, and we could talk more about ways that we can maybe figure out ways to close the gaps and the loopholes that may exist to make sure that you get protected also.

Brian Lehrer: Laura, thank you very much. Take him up on that offer to contact this office if you want to. Tell him you spoke on the Brian Lehrer Show, and he'll probably respond anyway, but he'll definitely respond after that. Good luck to you and your business. Also, joining us for a few minutes as we talk about the Freelance Isn't Free Act, the New York City version that was enacted in 2017, and the stronger New York State version that's in discussion now in the New York State Legislature, is freelance writer Ilana Kaplan. She's part of a lawsuit filed by the city, one of the first since the 2017 city law was enacted. It's against the magazine called L'Officiel. Ilana, welcome to WNYC. Would you tell us about your experience that led to the lawsuit?

Ilana Kaplan: Thank you for having me, Brian. Yes, so I had actually written five stories for L'Officiel from 2017 to 2018. I tried invoicing upwards of 10 times, and at every turn, I was given delays or told there were cash flow issues or ignored. The amount of money was enough to make me realize that it wasn't worth giving up but not enough to hire a lawyer because I would have broken even or lost money on money that I didn't know I was going to get. It all came to a head when I got taxed on the amount that I never actually received.

Brian Lehrer: Why? Because they file the 1099 for the payment that they never made?

Ilana Kaplan: Yes.

Brian Lehrer: Wow.

Ilana Kaplan: I had largely given up on being paid by them. I believe I tweeted and the National Writers Union got involved and helped not only me but a bunch of writers who were owed everything from hundreds of dollars to $18,000, used the Freelance Isn't Free law against them. Some of the writers I think still have yet to receive the funds they're owed, but L'Officiel isn't the only media outlet to deny or delay paying freelancers. This has been a long-standing industry-wide issue clearly. It's not only within the writing community, it's for freelancers in general.

I don't want to negate anything that anyone working in any other freelance capacity is dealing with, but basically, this statewide bill would make it so that we wouldn't have to email and follow up all the time and try to get paid. At the end of the day, we have bills to pay, you have bills to pay. Your landlord doesn't care that the magazine you wrote for is dragging that payment.

Brian Lehrer: It's great to have protections in place under the law, but as a worker, it can be scary to actually ask for what you're owed, let alone threaten to bring lawsuits. There's always the fear that you'll be labeled difficult and you won't get another job. On that score, I wonder if you have advice for people listening who may want to speak up, but maybe you're afraid to or don't know where to start.

Ilana Kaplan: I would say Twitter was what helped me get paid in the end, the social media. It was a very last resort. It took seven months. It had been seven months and no one had gotten back to me from L'Officiel. I think it's just like using your voice. That's the thing; it is scary. I get nervous about that too, but it's important because everyone has been or eventually will be at some point a freelancer, and this could very well affect you at any time.

Brian Lehrer: Larry Goldbetter from the National Writers Union, Local 1981. This is a story of a freelance writer. Do you know Ilana and her case?

Larry Goldbetter: Yes. We've been in touch and we represented Ilana and about a dozen other freelancers at L'Officiel and worked closely with the department of consumer and worker protections, the New York City Department, to actually bring the first suit that joined together freelancers in one case. Up until this point, you've had to deal individually, and one of the strengths of the New York state bill that Senator Gounardes is introducing is that it allows these cases to be joined and it allows freelancers to be represented. Again, just to add to what Ilana said, if you are experiencing nonpayment, get in touch with us at nwu.org, you can find us. We'll find you if you go out on social media, but it's a lot easier to just connect with us directly.

Brian Lehrer: Ilana, good luck to you in your hopefully ongoing writing career, and thanks for sharing some of your story with us.

Ilana Kaplan: Yes. Thank you for having me.

Brian Lehrer: We're going to run out of time pretty soon and go back to Ukraine coverage with Fred Kaplan from Slate. There are some interesting things taking place this morning that we want to get into and follow. Senator Gounardes, Ilana mentioned that though she is a writer, she knows it's not just writers who run up against this. I think though writers are the first category of worker that people think of, and we did invite obviously the president of the National Writers Union along with you. Besides people in journalism or other kinds of writing, what are some of the main categories of freelancers in New York State who are subject to these payment delays or even wage theft?

Senator Gounardes: It's a great question, Brian. It really can be anyone that is in business for themselves. It could be a writer, it could be a designer, it could be an illustrator, it could be someone in the musical profession, in the arts, it could be someone who's a tutor, someone who might have an after-school tutoring business, or someone who is an accountant, or you name it. Anyone really in the service sector can really set up shop for themselves, put up a shingle as it were, and put themselves out for business and provide work on a freelance basis. You're right. We often think of freelancers just as in the writing arts or the creative arts, but it really is much more expansive than that. That's why this bill is so important, and that's why what we're trying to do here will really have a big impact on a significant number of New Yorkers who are currently working without any form of protections whatsoever under the law.

Brian Lehrer: We leave it there with the president of the National Writers Union, Local 1981, Larry Goldbetter, and State Senator Andrew Gounardes of Brooklyn, who is now sponsoring a statewide version of a Freelance Isn't Free law that is in effect in New York State. It would also strengthen the law requiring a contract, for example, for any freelance work that would pay $250 or more. It's currently $800, and they want to lower it to strengthen it. We will see what happens. I know we have so many freelancers in our audience every day, people whose work hours fluctuate from day to day. They're there from 10:00 AM to noon in the morning to hear parts of this show. Freelancers, we're always with you, and we want you to give some amplification to this bill and the discussion of it. Larry and Senator, thank you very much for joining us.

Larry Goldbetter: Much appreciated.

Senator Gounardes: Thank you, Brian.

Larry Goldbetter: Thank you.

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