Are Models Employees or Independent Contractors?: A Class Action in New York Might Affirmatively Answer the Question

*** The writing does not, and is not intended to, constitute legal advice by any means***

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A common theme in my interview series has been the harsh reality models face while rendering their valuable performances. In New York, this harsh reality is exacerbated by the fact that models are classified as independent contractors for, not employees of, modeling agencies in the eyes of the law. Accordingly, such classification legally deprives models of major benefits in areas such as healthcare access and tax deductions. However, one New York judge recently granted class certification to a group of models who alleged that they should be seen as employees of agencies for the purposes of New York labor laws. See generally Shanklin v. Wilhelmina Models, Inc., 2020 N.Y. Slip Op. 31337 (N.Y. Sup. Ct. 2020). Before certified as one class, each model-plaintiff sued their respective agencies (Ford, Next, MC2, Wilhelmina with Ford later being granted dismissal from the class action) for breach of contract for various wrongs they had come to suffer. As the models amended their complaints, they added class action claims, and the discovery process commenced to make the determination.

To better understand the mechanics of class certification, it is necessary to take a look at Rule 23 of the Federal Rules of Civil Procedure, which lists the prerequisites for granting a class action status: i) numerosity, ii) commonality, iii) typicality, and iv) adequacy. See Fed. R. Civ. P. 23(a). These four requirements, to a certain extent, are inter-related, but each addresses its own unique concern. First, the class is so numerous that joinder of all members is impracticable. Joinder, as the name suggests, is a process by which parties are added to an on-going lawsuit. However, if there are too many people to be added, it might be better to certify them as a class rather than joining them individually. Second, there are questions of law or fact common to the class. The commonality requirement aims to ensure that each plaintiff has overlapping underlying facts or applicable laws so that dealing with them at once makes sense. 

However, you can't just add people for the sake of efficiency. The basic premise of the legal system is that each person gets a day in court through full representation, so here comes the other requirements. Third, the claims or defenses of the representative parties are typical of the claims or defenses of the class. The typicality requirement attempts to guarantee that some members of the class do not have distinctive claims or defenses that put the other members at a disadvantage. Without it, someone's otherwise effective claim or defense might not be given a full chance. Last, the representative parties will fairly and adequately protect the interests of the class. Since a group of lawyers for the representative parties will largely lead a trial, the adequacy requirement serves as a safeguard to assure that all members of the class and their interests are vigorously advocated. Each state has its own class action rule, and New York has the same requirements as Rule 23, except that it added the superiority requirement, which provides that "a class action is superior to other available methods for the fair and efficient adjudication of the controversy." See NY CPLR § 901(a).

Now, let's now dive into why Judge Sherwood certified a class action status in this lawsuit. The numerosity requirement was not in dispute. Although there is no magic number, enough models were involved and the agencies themselves did not bother to take issue with it. On the breach of contract claim, the judge denied class certification because the contracts were highly individual-specific. The models have different factual circumstances (commonality), which would allow their lawyers to fashion defenses that are tailored to those circumstances (typicality). Plus, the judge added that the agencies failed to convince him that there is alternative superior way of resolving the legal dispute (superiority). However, the judge concluded that the violation of the New York labor law claim qualifies for a class action. The judge noted that, based on the discovery, the agencies exercised a considerable degree of control over every facet of modeling, which is an important factor in determining whether models are employees or independent contractors. The higher the level of control is, the more likely it is that models are closer to employees. The lawsuit is on-going, and the ruling can have wide implications on the contractual relationship between models and modeling agencies.

I am personally very sympathetic to the models' cause. As myriad articles chronicled in aching detail, including that of Sara Ziff, models are one of the least protected "laborers" in the world. Add to that an unchanging reality that a number of models enter this industry at a very young age. Models cannot even form an effective union because of their independent contractor status. (Take a moment to read this GQ article about the nascent labor movement gaining traction in the modeling industry.) Models are not demanding special treatment: they just want to make sure that the basic rights that are legally conferred upon other categories of workers to apply to them as well. If the judge issues a broad ruling that defines models as employees, an industry-wide overhaul is expected. The movement is here, and this case might give the momentum that was long needed.