Testimony by Sara Ziff, Executive Director of the Model Alliance
Dear New York State Committee Members:
Thank you for hosting this hearing and for giving me the opportunity to testify today. My name is Sara Ziff and I am the founder and executive director of the Model Alliance, a nonprofit research, policy, and advocacy organization that advances fair treatment and equal opportunity in the fashion industry.
Too often, models are treated as objects, and not as legitimate members of the workforce who deserve to work with the same dignity, respect, and basic legal protections other workers enjoy under New York State’s sexual harassment and employment laws. Notwithstanding the success I have had as a model for the last twenty years, many of my peers and I have experienced inappropriate demands, including routinely being put on the spot to pose nude and provide sexual favors.In some cases, modeling agencies are sending models to known predators and putting them in compromising situations that no person, and especially no child, should have to deal with.
Essentially all professional models operate under fixed term, exclusive contracts to their agencies, who exert a great deal of control over their working lives.The agencies then contract with a client – a brand, magazine, department store and the like – for the model’s work. If a model is harassed in the workplace, to whom can she turn? The agency, who will blame the client for the unsafe workplace? The client, who will say they have no contractual relationship with the model? For models and other independent contractors in this type of triangular relationship, there is still no clear remedy.
Moreover, most modeling agencies assert that they are not regulated by New York State laws governing employment agencies, which would subject them to the necessary licensing and regulation. Even though the primary purpose of modeling agencies is to obtain employment for their models, they claim such activities are “incidental” to the general career guidance they provide as “management companies”—and therefore are not subject to the state’s regulation. I believe this is an issue that should be examined by the New York State Department of Labor.
Two years ago, I brought these concerns to Assemblywoman Nily Rozic. I had done a research project with the legal clinic at Fordham Law School on the working conditions of models, and when it came to sexual harassment, the law professors said they were all mortified by what they found, and surprised by the limited scope of the law.
The Model Alliance has since worked with Assemblywoman Rozic to introduce the Models’ Harassment Protection Act. If enacted, it would extend certain protection to models, putting designers, photographers and retailers (among others) on notice that they would be liable for abuses experienced on their watch. The bill would amend the current law to explicitly include models, explicitly forbid sexual advances and commentary or other forms of discrimination linked to their employment, and would require clients to provide models upon booking with a contact and avenue for filing any complaints.
Models in New York State need specific provisions because of their convoluted employment chain. Modeling agencies in New York argue that models are independent contractors, not employees. The agencies also claim to act merely in an advisory capacity by claiming that their role of booking jobs for the models they represent is incidental to their primary role of providing advice. When a client books a model through an agency, the model has no direct contract describing the scope of her work for the client.
Models have fallen through holes in the existing statutory safety net, including the “incidental booking exception clause.” That means that until now, in New York, which is regarded as the heart of the American modeling industry, it has been unclear where legal liability for job-related sexual harassment lies.
There has been too long a history of institutional acceptance – or at a minimum, recklessly ignoring – sexual harassment by both agencies and clients. Models should have the same recourse as all other employees to sue employers. They should have a direct mechanism for making complaints and should be assured that courts are willing and able to hold the agency and the client – their joint employers – responsible for the abuses they suffered. Regardless of how models are classified, it is imperative that they have an enforceable right to work in a safe and fair environment.
New York State can remedy these shortcomings by passing the Models’ Harassment Protection Act. The perceived glamour of the industry and gaps in the law should no longer be used to deny models a safe workplace or appropriate recourse if abuse occurs.We deserve no less than any other segment of New York’s workforce.
...Now, this wasn’t part of my prepared remarks but I know you just heard in the last testimonial about worker driven social responsibility. We have learned a lot from the farm worker women, from CIW and the Fair Food Program. For the last year, we have adapted that model for the fashion industry and that’s also another initiative that we are excited about. Our program is called the RESPECT program, and like the Fair Food Program, RESPECT is a legally binding program that will provide a much needed safety net, not just for models, but for freelance creatives working in the fashion industry more broadly. It includes a neutral third party to investigate and resolve claims of sexual harassment and retaliation. We believe if a company is serious about protecting us they will be willing to commit to enforceable standards with real teeth. We’ve campaigned for the last year and it’s been very difficult to get a company to sign on, to be the first one to jump.
Assemblyman Marcus Crespo: So, the Models’ Harassment and Protection Act, has any other state implemented a model, or a policy, like this?
Sara Ziff: This is something that we have been working on for the last couple of years, at least. We did champion legislation In California, The Talent Protections Act, last year. That legislation looks a bit different, in part, just because there isn’t quite the same issue with management companies and how they are structured in California versus here.
MC: I’ll just say this, my wife did some modeling when she was younger and would tell me some horror stories of what she experienced, even as a minor, participating in some events. It’s mind-boggling in an industry as relevant, particularly in New York, with the biggest players in the market operating in New York, that this issue has not been more thoroughly addressed. Especially in this movement with #MeToo and #TimesUP and with everything else that has gone on, that more hasn’t been done in this industry. I’m new to the committee on labor, but I’m going to go back and look at the differences on why we aren’t treating modeling agencies as employment agencies and I think you’ve made some very good points. Thank you for your testimony.
Senator Alessandra Biaggi: I just have a few quick questions and an overall broad comment on the work you’ve done for so many years, through the Fashion Law Institute and the modeling law class that I actually took at Fordham Law with Doreen and Ali in 2008, that you came and spoke at. I think that one of the most glaring things that was so clear to me, is that there are these known abusers in every single industry, and with modeling it’s everywhere. It’s the photographers, it’s the agents—it’s all over the place and one of the things that seems to be so challenging. If you are a disrupter in the system, where you clearly know this is a way that we can change it, creating this law can create a relationship or legal chain of relationship that can hold someone accountable. And this kind of goes a little bit in terms of that testimony, we heard earlier. Assemblywoman Simon had touched on this: “How do they know how to organize?” So, I’m thinking one step after that, how do you get people who are already in the system to join you? Because there is such a culture around just letting it go because of the imbalance of power. And I know you’re using the RESPECT model, but it is incredibly challenging right? So, if we pass the Model Harassment and Protection Act that’s a huge step in the right direction, but before that point, and after that point, how do we make sure that people feel safe to speak up and still have their livelihood? Because so many men and women in the modeling industry, rely on the agencies and the photographers and you know, some of the best photographers are the worst abusers. Just like some of the best legislators are some of the worst abusers. It’s everywhere, in the whole world and I’ve always said that it’s an epidemic. I really would be curious to hear your point on that because that really matters when we’re thinking about laws because we can change laws until kingdom come, and I would argue that the culture has reached that point, but it hasn’t met everybody where they’re at.
SZ: Yeah, that’s an important point. At the moment people just feel that they can act with impunity because they can. I remember calling out a well-known photographer, who has shot for many of the biggest brands and magazines and even photographed the President. Yet it was known, it was an open secret, that he was sexually harassing and assaulting even minors. And I know because I saw it first-hand. Yet all of these prestigious big companies continued to work with this person—and isn’t about any one person, this is pervasive throughout the industry. It’s really not until the #MeToo and #TimesUp movements and through the power of publicity that we’ve been able to be heard despite pushing this forward for a very long time.
AB: I just have one follow up question to this, and I think I know the answer to this. Have you considered the unionization of models?
SZ: Before I started the Model Alliance, I approached established unions and asked if they would extend membership to us. They said it was impossible because we’re told we’re independent contractors and under federal law we cannot unionize.
AB: So, what makes models different than actors and actresses?
SZ: That’s a very good question. Legally, actors are considered employees.
AB: Of whom?
SZ: I would believe of the production.
AB: That is so remarkably ridiculous because it’s an analogous structure. It makes no sense. Thank you.
Assemblywoman Aravella Simotas: Sara, thank you for coming to tell us about what is happening in your industry. My question is very specific about potentially what we can do about retaliation, which in your business would be blacklisting somebody. I could see how it would be easy for some photographer, or for some label to say, “well, you don’t look the part.” But it could be because you’re trying to complain about a predator. We have strong retaliation laws in the State of New York. You’re not supposed to retaliate against people if you complain about harassment. But I think in the modeling world it’s going to be different, just by how things are run. Have you thought about how we can prevent blacklisting of models, maybe create a repository, maybe something that can be more helpful than just complaining that you’re being retaliated against, or blacklisted, and not being able to prove it?
SZ: Sure. It’s a tricky question when you’re talking about the gig economy where you don’t necessarily have regular work, or one steady client. I think we do, however, have exclusive multi-year contracts with our agencies. I saw myself, while working as a model, and other cases that have come through us through our grievance line, where agencies have dropped models after they have reported sexual harassment or assault. They have failed to promote models’ careers, submit them for jobs. So, there are some clear indications that would show retaliation, at least from the agency side. But maybe that is something that the last person who testified, and the folks from the Fair Food Program could speak to more since they also deal with contract workers.
AS: Thank you.
Assemblyman Dan Quart: I just have a quick question. Thank you for your testimony. Having just had the benefit of reviewing a modeling contract, it really shocked me how unequal, what the leverage is, almost to the extent that the young person—and it’s almost always a young person—is almost as if they’re an indentured servant in some sort of way. I think changing the label from an independent contractor to an employee is a good start. But in other areas of the law in the state, the legislature can step in when the balance of power of two parties are imbalanced, if you will. Have you or your organization given any thought to things that the legislature can do policy-wise, on the contract side of things? Because we do legislate in that area, in insurance law and other places, to try and give more power to the mostly young women who are going to become models. Because based on the contract, it is a desperate situation.
SZ: Yes, thank you for raising that. The contracts tend to be entirely one sided in favor of the agency. Often it is seventeen, eighteen-year-olds signing these contracts; it’s an aspirational industry, they sign on the dotted line. They don’t negotiate and frankly, they don’t have any bargaining power. I question whether many of these contracts are enforceable. But certainly, the contracts that these models are held to, they are essentially working in debt to their agency. And some of these are children, who are here sponsored by these modeling agencies to work here from Eastern Europe, Brazil and elsewhere. Yes, thank you for recognizing that, I’m not quite sure what the answer is but it’s certainly on our radar.
Senator Alessandra Biaggi: I just have one follow up question: When child models are signing contracts, a parent I’m assuming, is required to be present?
SZ: Yes, it’s not enforceable if you’re signing it when you’re under eighteen.
AB: Right, because child labor is illegal. That’s quite interesting. I wonder if there is a mechanism in contract law. Well, we’ll see. Thank you.