The New York Fashion Workers Act Slowly Progressing Forward

As a means to regulate modeling and creative agencies and provide basic labor protections to the creative workforce behind the fashion industry — models, influencers, artists, and stylists — the New York Fashion Workers Act (FWA) was introduced by Senator Brad Hoylman-Sigal and Assembly Member Karines Reyes in March 2022. Recently, legislators in New York amended the bill to require fashion companies to obtain written consent to use a model’s digital replica, as more designers and brands leverage artificial intelligence to supplement traditional photography. The amendment aside, it has been more than two years since the introduction of the FWA and progress toward the legislation becoming law remains slow. Yet for those who are the literal faces of the fashion industry, passage of the FWA cannot come soon enough.

Closing a Loophole

The FWA seeks to address the current treatment of models, influencers, artists and stylists as “independent contractors” under the terms of the Fair Labor Standards Act. Unlike talent agencies, modeling and creative agencies are considered “management companies” under New York State General Business Law §171(8) — commonly known as the “incidental booking exception,” which allows these entities to escape licensing and regulation. As a result, fashion creatives are generally deprived of basic labor protections.

Along with Paris, Milan, and London, New York City is one of the four global fashion capitals of the world, a distinction highlighted every year during the semiannual New York Fashion Week that pumps hundreds of millions of dollars into the local economy. Adding to its stature as a fashion mecca, New York is also home to three of the most prominent fashion design schools in the country: the Fashion Institute of Technology, Parsons School of Design, and Pratt Institute.

By virtue of the importance of the fashion industry to the state, Senator Hoylman-Sigal continues to fight for passage of the FWA, making clear that New York must ensure that models and other creative workers are not exploited and instead are afforded workplace protections that guarantee fair compensation and treatment.

Fairness for Models in Particular

The exploitation of models has been a hot-button topic for years. This is because modeling agencies generally have power of attorney as part of their agreements with models. Consequently, they can accept payments on behalf of models, deposit checks, deduct expenses, book jobs, negotiate rates of pay, and give third parties permission to use a model’s image. This leaves models unprotected outside the terms of their individual contracts that tend to be agency friendly.

For their part, models often wait months to get paid for jobs, and only after commissions (up to 20 percent) and various other fees are deducted. To make matters worse, young models are frequently crowded into apartments and charged monthly rents that exceed market value — this on top of them being held to exclusive, multiyear contracts without any promise of work or timely payment.

In response, the FWA would, among other things, require modeling agencies to provide models with copies of contracts and agreements, notify formerly represented models when royalties are collected on their behalf, and protect models’ health and safety, including establishing a zero-tolerance policy for abuse. Bigger picture, the bill, as proposed, would impose a fiduciary duty on these agencies to act in the best interests of the talent.

Affirmative Obligations

The FWA would also force the discontinuation of certain offensive existing practices; among them, imposing powers of attorney as a necessary condition for models to obtain contracts, collecting signing fees or deposits from models and interest on their earnings, charging more than fair market rates for rent, deducting fees or expenses beyond agreed upon commissions, renewing contracts without a model's affirmative consent, insisting on commissions greater than 20 percent of a model's compensation, taking retaliatory actions against models for filing complaints, and engaging in discrimination or harassment of any kind.

Likewise, the FWA would require clients hiring models to provide overtime pay and meal breaks for work that exceeds eight consecutive hours and liability insurance to cover the health and safety of models. Pursuant to the FWA, clients additionally would be compelled to allow models on the job to be accompanied by chaperones and otherwise adhere to zero-tolerance policies in terms of abuse.

The Clock is Ticking

Just last month, the New York Senate Labor Committee passed the FWA for the third year in a row. Now, the Model Alliance, which co-sponsored the bill, is urging state lawmakers to pass the FWA in both chambers before the legislative session ends in June. While ambitious in timing, it seems that there's room for optimism. Indeed, the FWA, like the New York Fashion Sustainability and Social Accountability Act, is gaining momentum as lawmakers in New York are poised to reshape the fashion industry.

Warren Koshofer is a partner in the New York office of Michelman & Robinson, LLP, a national law firm headquartered in Los Angeles, with additional locations in Irvine, CA; San Francisco; Dallas; Houston; and Chicago.