L’Officiel USA is on the receiving end of a striking new lawsuit filed by the City of New York’s Law Department and the Department of Consumer and Worker Protection. In an announcement on Wednesday, the city revealed that in its suit, which was filed in New York County Supreme Court on November 29, it alleges that fashion and culture publication L’Officiel has engaged in an “egregious pattern or practice of unlawfully failing to compensate – or in some cases to timely compensate – at least 24 freelance workers for work performed by them for [L’Officiel] under contract,” thereby, running afoul of the Freelance Isn’t Free Act.
In the newly-filed complaint, the City of New York asserts that L’Officiel USA – which is an American subsidiary of French family-owned media group Jalou Media Group – has “repeatedly and systematically failed to compensate, and in some cases, failed to timely compensate,” at least two dozen freelance workers, despite “having received and benefitted from the services performed” by those individuals. As a result, L ’Officiel USA has “unjustly benefitted, and continues to unjustly benefit, from the skilled work performed by countless freelance workers, causing great harm to the affected freelance workers, and to the City as a whole.”
Since New York City’s Freelance Isn’t Free Act (“FIFA” or the “Act”) was enacted in 2017, the City alleges that it has received twenty-four complaints against L’Officiel for failure to comply with the Act’s payment requirements, including by failing to pay the freelancers’ invoices – which range from $200 to nearly $20,000 for writing, editing, and photography services – and that at least some of the complaints also alleged additional violations, including L’Officiel’s “refusal to provide a written contract and retaliation.”
While the City’s Law Department and the Department of Consumer and Worker Protection provided written notice of each complaint and a deadline to respond to L’Officiel, in all but two instances, the publisher allegedly failed to respond. In the two instances when it did respond, L’Officiel did so “by making the outstanding payment owed.”
Freelance Isn’t Free
With the foregoing in mind, the City sets out two claims of FIFA violations, and is seeking injunctive relief to require L’Officiel to “bring themselves into compliance with FIFA by paying all outstanding amounts owed to the unpaid freelancers,” “make all necessary modifications to their policies, practices, and procedures to comply with FIFA’s timely payment procedures going forward,” and “engage a court appointed monitor, at [its own] expense, and submit to that monitor monthly documentation establishing its regular and timely payment of freelance workers going forward, or face penalties of $10,000 for each subsequent documented violation of FIFA’s timely payment provision.” Still yet, the City is seeking monetary damages to be determined at trial, including an award of double damages to the freelancers whose rights were violated.
The first law of its kind in the U.S., the complaint states that FIFA was enacted “to ensure that the City’s many freelance workers are not taken advantage of by those who hire them to do work,” and to that end, “it provides statutory protections that allow freelance workers to obtain and enforce written contracts; to ensure prompt and complete payment for services provided; and to be protected from retaliation for enforcing their rights under FIFA.”
Specifically, the law requires a “hiring party” – i.e., any person who retains a freelance worker to provide any service – to pay the freelance worker for the services provided on or before the date the compensation is due under the contract, or if the contract does not specify, no later than 30 days after the completion of the freelance worker’s services under the contract. The state law defines a “freelance worker” as “a natural person or organization composed of not more than one natural person, whether or not incorporated, that is hired or retained as an independent contractor by a hiring party to provide services in exchange for compensation.”
In a statement released in connection with the case’s filing, New York City Mayor Bill de Blasio said, “Freelancers are a valued part of New York City’s workforce and their work isn’t free. We will not allow L’Officiel to get away with reaping the benefits of our talented freelancers without paying them for their hard work. To those who break the law: New York City will hold you accountable.”
“L’Officiel published articles, photography, and illustrations by freelancers but either didn’t pay them at all or sometimes paid them months, even years later,” Corporation Counsel of the City of New York Georgia M. Pestana, who is representing the City in the case, stated. “Our suit seeks to hold L’Officiel responsible for its consistent and blatant disregard of the City’s Freelance Isn’t Free Act, which was enacted to address a growing problem faced by the freelance community in New York City.”
Beyond L’Officiel: A History of Freelance Issues
Not a novel phenomenon, the fashion and media industries have been rife with reports of freelance labor violations dating back to at least the summer of 2001 when thousands of freelance journalists made headlines for taking on some of America’s biggest media outlets. In a strongly-worded lawsuit, 2,500+ freelance writers and various writers’ guilds, alleged that the New York Times, Dow Jones, and the now-defunct newspaper behemoth Knight Ridder were allegedly profiting off their work and not fairly compensating them for it. After a 17-year-long legal battle, the case finally come to a head in 2018, and the freelancers walked away with a $9 million victory.
Around the same time as that lawsuit was wrapping up, widespread complaints were surfacing within the fashion industry – and beyond – about the terms of massive publications’ deals with freelance writers and other creatives. For instance, in the spring of 2017, Vogue’s parent company Condé Nast made headlines for adding language to its freelance contracts to allow for quicker payment in exchange for a discount on the agreed-upon rate. This set the industry and the internet abuzz with fury, while Condé Nast later stated that the new language is meant for larger vendors, such as Staples and FedEx, and not individual creatives, noting that it has “and will continue to pay freelancers within 30 days but wanted to offer them some flexibility and have added this industry-standard option.”
All the while, Ebony Media Operations was named in a headline-making lawsuit that the National Writers Union filed in 2017 on behalf of dozens of freelance writers, who claimed that they were owed more than $70,000 in unpaid wages. On the heels of the initiation of lawsuit and after an #Ebonyowes social media campaign gained significant traction online, the media group agreed to pay $80,000 to compensate 39 writers, editors, and other creatives for contributions to its print and web publications in violation of Illinois state wage and labor laws, and settle the suit.
Against this background, the L’Officiel suit is, nonetheless, being characterized a “first of a kind suit,” as it is the first time that the fashion media has been brought under the microscope of FIFA, in particular. Chances are, the case is likely to prompt additional actions by the City against other entities, both in fashion and in other industries.
Peter A. Hatch, who is the Commissioner of the City’s Law Department and the Department of Consumer and Worker Protection, asserted this week that despite the departments’ “best efforts to support compliance, L’Officiel continues to flout the law, so we had to sue to recover the money it owes these workers.” He also notes that the City is “encouraging any other freelancers who have not been paid by L’Officiel to contact us.”
The case is The City of New York v. L’Officiel USA Inc., 453762/2021 (N.Y.Sup.)
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