Category: EMPLOYMENT LAW

Underage Models and the Fashion Industry

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Every year, teens and pre-teen girls from all over the world flock to New York in an attempt to break into the fashion industry after being discovered by scouts, individual designers or photographers.[1] The reality for these aspiring models is markedly different from household names like Irina Shayk, Kate Moss or the daughters of Hollywood Celebrities Johnny Depp and Will Smith.

The average model startlingly begins her career between the ages of 13 and 16 and in many cases is housed in apartments with her peers without parental or adult supervision.[2] Further approximately 56 percent of underage models are rarely accompanied by guardians on set, so they are largely left unsupervised and at the mercy of demanding and predatory directors or photographers.[3]

All too often, these young girls look their modeling agency to ensure their well-being, financial or otherwise, but as Sara Ziff points out in a New York Times Opinion, these agencies also contribute to the abuses they experience by looking out solely after their own interests.[4] Modeling agencies which are mostly unlicensed and unregulated management companies unlike talent agencies for actors or other types of entertainers can reap a disproportionate amount of a model’s earnings or take advantage of the models’ inexperience or a language barrier to draft onerous contracts.[5]

The average model’s career will be over by age 20[6], so common sense dictates that the girls who pursue this path should be able to have a back-up plan by going to school to get an education during their modeling careers. However the traditional classroom environment is ill-suited to the demands of the fashion industry. Fittings during New York Fashion Week can take place until the wee hours of the night and it is difficult to see how it – as well as runways or shoots – could be reconciled with a student’s traditional school schedule.[7] It is thus not entirely surprising that the girls are dissuaded from educating themselves and are expected to sacrifice their education for their careers.[8]

Aspiring models journey to New York with the hope that they will live a glamorous lifestyle and be paid handsomely for their work, but the reality is that compensation is not always suitable. According to Kelli Ortega, while models are occasionally a fixed or hourly salary, payment for modeling usually comes in the form of free clothing or accessories from the designer for whom they modeled.[9]

One might reasonably assume that primarily up-and-coming labels orchestrated such a practice and he would be mistaken. At least one designer Marc Jacobs was known to do this.[10] Following complaints from a 17 year old model that she was required to work long hours, Jacobs casually responded that the models were “paid in trade. If they don’t want to work with us, they don’t have to.” In some cases, models will work for the exposure that their work will bring. Neither free gifts nor exposure are substitutes to actual compensation.[11]

Even though these young girls model clothing for adults, they face constant pressure to be as thin as possible in order to get hired and as a matter of fact, 64 percent of models have been asked by their agencies to lose weight.[12] Considering that the average model weighs 23 percent less than the average woman (while also being taller), it is not surprising that models tend to suffer from eating disorders at a rate 10 times greater than the national average.[13]

In an attempt to redress the unacceptable practices within the fashion industry, the Council of Fashion Designers of America and some state governments – in response to the federal government’s slow response- have taken swift action, respectively by releasing guidelines calling for the industry to hire models older than 16 and by amending labour provisions.[14]

New York modified its labour regime so underage models can now be designated Child Performers, thereby granting them some measure of protection. Brands that want to cast these models have to “submit a notice of its intention to use child performers; ensure those employed have valid work permits (the work permits notably require that the models attain satisfactory academic standards or no longer be required to attend school; and that the model receives a medical attestation that she is physically fit to work); adhere to the restricted working hours – including breaks after four hours of work; and keep evidence that the underage models’ pay is entered into their trust funds as stipulated by the law.”[15]

Although several states have passed legislation specifically protecting child models, the policies are not uniform across all states; they tend to offer inconsistent or insufficient protections.[16] Child actors and models are currently exempt from the child labour provisions of the Fair Labor Standards Act (FLSA), so any protection they are entitled to is handled on a state-by-state basis.[17]

Amending the FLSA and using New York’s labour laws as a template could improve these stopgap measures.

New York congresswoman Grace Meng introduced a bill that would establish rules on the number of hours that children can work, salaries and compensation as well as liability for workplace sexual harassment.[18] As welcome as the bill may be, it regrettably does not require that performers and models obtain a medical attestation stating that they are physically fit. I think that this requirement would go a long way toward fighting eating disorders these young girls are more prone to suffer from.

[1] Craig Tepper, “A Model For Success: Why New York Should Change the Classification of Child Models under New York Labor Laws,” (2013) 24:2 N.Y. St. B.A. Ent. Arts & Sports L.J.

[2] Kelli Ortega, “Striking a Pose: Protecting the Welfare of Child Models” (2014) 35:1 Cardozo L.Rev.

[3] The Model Alliance, Comparisons and Reasons for Change, online: < http://modelalliance.org/comparisons-and-reasons-for-change >

[4] Sara Ziff, “Regardless of a Fashion Model’s Age, It’s About Rights”, The New York Times (November 12, 2012), online: < http://www.nytimes.com/roomfordebate/2012/09/13/sweet-16-and-a-runway-model/regardless-of-a-fashion-models-age-its-about-rights >

[5] Annemarie Strassel, “Work it! The New Face of Labor in Fashion” (2014) 61:2 Dissent.

[6] Modelingadvice.com, Fashion Model Size Requirements. online: < http://modelingadvice.com/fashionModelSize.html >

[7] Ortega, supra note 2.

[8] Ibid.

[9] Ibid.

[10] Tepper, supra note 1.

[11] Dimitria Parisis, “The Marc Jacobs/Hailey Hasbrook Conundrum: Working for Trade; A New Vicious Cycle? Scallywag and Vagabond (March 7, 2012), online: < http://scallywagandvagabond.com/2012/03/the-marc-jacobshailey-hasbrook-conundrum-working-for-trade-a-new-vicious-cycle/ >

[12] Ortega, supra note 2.

[13] Ortega, supra note 3.

[14] The Council of Fashion Designers of America, Health Initiative Guidelines Updated by the CFDA, online: < http://cfda.com/the-latest/health-initiative-guidelines-updated-by-the-cfda >

[15] Vogue News, “Is NYFW Breaking Underage Model Law?” (16 February 2016), online: < http://www.vogue.co.uk/news/2016/02/16/underage-models-new-york-fashion-week&gt;

[16] A Department of Labor table illustrates the discrepancy in protection between the states; states like Colorado and Mississippi offer no protection at all, while states like California and New York have robust legislative regimes: < http://www.dol.gov/whd/state/childentertain.htm >

[17] Fair Labor Standards Act 29 U.S. Code § 213 (1938)

[18] Child Performers Protection Act of 2015, H. R. 3383, 114th Cong. (2015)

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Uber Drivers: Employees or Independent Contractors?

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DISCLAIMER: THE FOLLOWING INFORMATION IS NOT INTENDED TO BE LEGAL ADVICE AND IS NOT GUARANTEED TO BE CORRECT, COMPLETE OR UP-TO-DATE. THEREFORE, IF YOU NEED LEGAL ADVICE, YOU SHOULD CONSULT A LICENSED ATTORNEY IN YOUR AREA .

 

Introduction

The taxi-hailing application Uber has, as a result of its immense popularity with users, expanded in well over 270 cities since its launch 6 years ago.[1] The company operates a marketplace through which customers and local drivers are paired. As part of its business model, Uber classifies the drivers as independent contracts and by virtue of this classification, the Uber drivers must pay expenses out of their own pockets, receive no guaranteed hour wages or a salary and they receive no employee benefits.[2] In addition, Uber is thereby not subject to the Canadian withholding, remitting and reporting requirements as well as social security taxes that companies that hire employees must pay.

Issue

1) Are Uber drivers employees or independent contractors?

Uber drivers likely are employees because the nature of their work and duties evidences a finding that there was an employment relationship between the parties. The primary test to determine the existence of this relationship is whether the worker is performing services “as a person in business on his own account”.[3] This is ascertained by looking at a two-step approach that firstly considers the subjective intent of the worker and the company that engages his services and secondly, examines whether the subjective intent of the parties is sustained by an objective reality.[4]

Analysis

Subjective intent of the parties

Uber and its drivers likely intended that the drivers perform the service of transporting clients on their own account as independent contractors. This can be seen be seen from either the contractual relationship the parties have entered into or by looking at the conduct of the parties; the presence of invoices and registration for tax purposes can be helpful indicia.[5]

The contract between Uber and the driver stipulates that “[t]hrough its license of the mobile application…, [Uber] provides a platform for Users to connect with independent transportation providers.”[6] Moreover several other contractual clauses could support the notion that the drivers were providing their services as independent contractors, namely a provision granting the drivers the discretion to accept transportation requests[7]; and moreover clause 2 of Uber’s Terms and Condition (T&C) states that the drivers acknowledge that they are not employed by Uber.[8] The drivers must accept the T&C drafted by Uber prior to gaining access to the platform, so it is likely that the intention of the workers was to act as independent contractors.

A further determination could be made by looking at whether the drivers reported their income as independent contractors. Based on the foregoing, the parties likely intended for the drivers to be considered as independent contractors.

Whether the intention of the parties is sustained by an objective reality

The stated intention of the parties to treat the drivers as independent contractors is likely not sustained by reality. This inquiry involves consideration of the factors set out in Wiebe Door, namely “the level of control over the worker’s activities, whether the worker provides his own equipment, hires his helpers, managers and assumes financial risk, and has an opportunity of profit in the performance of his tasks.”[9]

In this case, Uber exercised a significant level of control over the drivers with respect to how duties had to be accomplished. The drivers are obligated to maintain a properly registered and licensed vehicle no more than 10 years old and in good operating condition.[10] Furthermore, the vehicle’s cleanliness must be maintained while providing transportation to customers.[11] The task of providing transportation to customers must be done with professionalism, courtesy and care.[12] A failure to do adhere to the terms of the Uber agreement may result in a driver losing access to the platform.[13] Nevertheless, the drivers have the flexibility to choose their own hours.[14] Moreover in carrying out their tasks the drivers are required to provide their own vehicles and additionally are responsible for defraying their operational costs themselves out of their own pockets.[15] However in some instances, Uber has given drivers an iPhone so that they could access the application in return for a refundable deposit.[16]

Furthermore, the T&C state that drivers may not share their login information with anyone, thereby limiting their ability to hire helpers.[17] The drivers are bound to assume their won financial risks and losses to the extent that income they earn from the application is contingent on their own efforts; notwithstanding this, Uber’s T&C will grant the drivers an indemnity whenever customers fail to appear at a pick-up location[18] and may also do so to compensate drivers for unbuzy days.[19]

Finally the chance drivers have to realize a profit in the performance of their tasks is limited by Uber. Their remuneration is set at a fixed rate by the company and additionally, the company precluded them from accepting tips from customers.[20] The drivers in spite of this could nevertheless adjust their pay by working as much as they desire.

The aforementioned factors are indicative of a relationship that features elements from both a contract of services and a contract for services. By considering the whole scheme of the operation, the legal operation between parties would likely be defined as employer and employee, thereby controverting the intent of the parties.

Conclusion

The drivers likely are employed by Uber. Despite contractual provisions to the effect that the drivers would be classified as independent contractors, this intent does not seem to be sustained by the objective reality of the relationship between the parties, which indicated that the drivers were actually employees. In sum, it would appear that the drivers and Uber had an employee-employer relationship.
 

 

 

[1] Henry Ross, “Ridesharing’s House of Cards: O’Connor v Uber Technologies Inc, and the Viability of Uber’s Labor Model in Washington” (2015) 90 Wash L Rev 1431.

[2] Ibid.

[3] 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59.

[4] 1392644 Ontario Inc. (Connor Homes) v. Canada (National Revenue), 2013 FCA 83.

[5] Ibid.

[6] Tax Casebook p. 106, Fall 2015, Allison Christians.

[7] Ibid.

[8] Uber, Software License and Online Services Agreement section 13.1 (Nov. 10, 2014)

[9] Connor Homes, supra note 2 at 40.

[10] Tax Casebook supra note 6 at 106; Uber Agreement supra note 8 at 3.2.

[11] Ibid.

[12] Uber Agreement supra note 8 at 3.1.

[13] Ibid.

[14] Ross, supra note 1.

[15] Uber Agreement supra note 8 at 3.2

[16] Tax Casebook supra note 6 at 108.

[17] Uber Agreement supra note 8 at 2.1

[18] Tax Casebook supra note 6 at 107.

[19] Ross, supra note 1.

[20] Tax Casebook supra note 6 at 107.