What Models Need to Know About Unemployment Insurance
In light of the COVID-19 pandemic, the Model Alliance has created a tailored guide for models who are seeking information about how to file an unemployment insurance claim. We have included information relevant to New York, California and Florida, as these are the states where most models in our community are based.
For models who are filing for unemployment insurance benefits in New York, we have created a step-by-step guide, "A Guide for Filing for Unemployment Insurance Benefits In New York: How to Avoid Misclassification as an Independent Contractor." New York law considers models to be employees for purposes of unemployment insurance, so take advantage of that classification!
The Model Alliance will do our best to update and add to this page as new information becomes available.
This page was last updated April 22, 2020.
PART I: SHOULD I APPLY FOR UNEMPLOYMENT BENEFITS?
If you lost your job (aka were “laid off”) or were “furloughed” (aka are temporarily not working) because of the coronavirus, or if the company you work for is permanently or temporarily shut down because of it, you may qualify for weekly unemployment payments from the state in which you worked.
Yes, you can file an unemployment claim as long as you have an immigration status, are authorized to work in the US and have a Social Security number. To collect UI benefits, you must show that you are in satisfactory immigration status and authorized to work in the United States when earning the wages you used to establish your claim. You must also give proof that you are currently in satisfactory immigration status, and are authorized to work each week that you claim benefits.
We have heard that some agencies are discouraging models from applying for benefits because doing so will make them lose their visa. This is likely not true.
Many agencies right now are "furloughing" models (temporarily not getting models work, or temporarily closed) versus "laying off" or "terminating" models (firing models or dropping them from their contracts). If your agency didn’t terminate its contract with you, you are likely not “laid off” and thus your visa is not terminated either. This means you should apply for benefits and you will not lose your visa. If you have further questions about this or your particular visa category, you should consult with an experienced immigration attorney.
We have heard that some agencies are discouraging models from applying for unemployment insurance because doing so will make them a “public charge”. This is not true. This is confusing “unemployment insurance/ benefits” with “public benefits” such as food stamps -- they are two very different things.
Noncitizens may be concerned about applying for and receiving unemployment insurance and potentially subjecting themselves to the “public charge” ground of inadmissibility in light of the Department of Homeland Security’s (DHS) new and more restrictive “public charge” test. Maybe your agency has even said this to you. This is false. A “public charge” is someone who is likely to receive a means-tested “public benefit” (e.g., food stamps, Medicaid, low-income housing voucher) in the future. Unemployment insurance is not a “means tested public benefit”t; rather, it is a form of “insurance”. Consider car insurance, for example, you pay into your insurance plan every month, but you only use it if you have an accident. Similarly, with unemployment insurance most people pay into the system when they pay their taxes, but only draw from it when they suddenly become unemployed. As such, UI is quite different from “means-tested public benefits” and accessing unemployment insurance has no impact on your present or future immigration status. Most importantly, UI is not a part of the new “public charge” test. 1
1Formore information, see USCIS Policy Manual, Volume 8, Part G, Chapter 10
PART II: HOW DO I APPLY FOR UNEMPLOYMENT BENEFITS?
Unemployment insurance (also known as “UI”) provides temporary cash benefits to employees who have lost their jobs. If you have worked in your state within the last approximate 18 months (check your state’s guidelines) and lost your job, through no fault of your own, you may be eligible for UI.
Pandemic Unemployment Assistance (also known as “PUA”) is a program created by the CARES ACT in the wake of the coronavirus that extends benefits to workers who are unemployed but have traditionally been ineligible for UI benefits because they are not classified as employees (e.g., self-employed workers, independent contractors, gig workers). To look at PUA eligibility, see this helpful resource. Specifically, PUA intends to:
- Provide unemployment to workers who don’t traditionally qualify. The amount will be based on previous income, and will vary based on location and benefit guidelines.
- Include supplemental benefits. Eligible workers will receive $600 a week in additional benefits for up to four months.
- Provide extra weeks of benefits. There will be an additional 13 weeks of benefits to help those who are still unemployed after they run out of state benefits. The length of state benefits varies based on location, but the maximum is 26 weeks.
- NEW YORK: You can file a claim here. If there are issues, a DOL representative will call you back within 72 hours. As of April 10, 2020, there is no longer a requirement to call the DOL and verify your identity.
- FLORIDA: You can file a claim here. Florida only accepts unemployment claims online. For questions, call the agency at 1-800-204-2418. Here is a helpful guide.
- CALIFORNIA: You can apply for unemployment insurance here, or by mailing or faxing the application to the Employment Development Department (Spanish version here). You may also apply by phone, but expect long wait times. If it takes you more than five business days to connect by phone, you can ask the Employment Development Department to backdate your claim to the Sunday before you started calling; just keep documentation of your attempts (like screenshots of your call log).
California’s PUA system is not online yet, however, but is expected to begin accepting applications on April 28th.
If you live in X state but all your work in the past 18 months was in another state, file your claim in the state where you worked.
If you worked in two or more states in the past 18 months, you may file your claim in one or both of the states where you worked, (again, no matter where you live). You may be able to combine wages from all the states where you worked in the past 18 months. OR, you may use only the wages earned in the filing state. File your claim in both states where you worked, then the states will tell you all your filing options to receive the highest benefit amount.
You need different documentation to file for unemployment than you need to file for PUA.
- NEW YORK:
- Filing for Unemployment as an Employee: Please follow the advice of this guide.
- Filing for Unemployment as an Independent Contractor: Please follow the advice of this guide.
- Filing for Unemployment as an Employee: You need a Social Security number; driver’s License or State ID number; your employment for the last 18 months. Additionally, if you are one of the following, make sure you have this additional information available: Not a US Citizen: Alien Registration Number or other work authorization form; Union Member: Union Name, Hall Number, and Phone Number
- Filing for Unemployment as an Independent Contractor: Florida is requiring independent contractors to first get rejected by state UI, and will then have them apply for PUA when a form becomes available. No system is set up for PUA yet.
- Filing for Unemployment as an Employee: Here is a checklist of all the information you’ll need to apply.
- Filing for Unemployment as an Independent Contractor: If you are an independent contractor, you should list yourself as your last employer. The PUA system, however, is not online yet so true independent contractors cannot yet submit PUA claims.
- NEW YORK: You should file your UI claim in the first week you worked less than four days or earned less than $504. If you worked four or more days or earned more than $504, you should file the following week. If you have been out of work for a few weeks now, it's not too late, but you should file as soon as possible. Your application will be back dated; keep track of when you first tried to apply.
- FLORIDA: Within one week of becoming unemployed, you should begin the claims process to receive your benefits. The date your application is finished determines when you will begin receiving benefits. Claims always begin with the Sunday prior to the completion of the application. For example, an application completed on Wednesday will take effect on the Sunday before that Wednesday.
- CALIFORNIA: You should file your UI claim in the first week that you lose your job or have your hours reduced. Your claim begins on the Sunday of the week you submitted your application.
- NEW YORK: In New York, the Model Alliance is encouraging models to file for unemployment insurance as an EMPLOYEE. This is because N.Y. Labor Law § 511(1)(b)(3) classifies “professional models” as employees for the purposes of Unemployment Insurance. Further, New York courts have consistently and repeatedly held that models are employees for purposes of unemployment insurance.2 It does not matter if you signed a contract that says you are an independent contractor, that is not a be-all-end-all final word on the matter. You can still be considered an employee for the purposes of unemployment insurance. Model Alliance recommends this because we believe this is the fastest way for you to get UI benefits.
If you choose to file as an independent contractor, you can as of Friday, April 10th directly apply for PUA. Previously, New Yorkers were required to apply for regular Unemployment Insurance and be rejected before applying for Pandemic Unemployment Assistance but this is no longer the case. The PUA process will likely take longer than if you are approved for regular UI.
- FLORIDA: In Florida, we do not have an opinion on whether you should file as an employee or independent contractor as there is not a large amount of case law.
- CALIFORNIA: In California, we are encouraging models to file for unemployment as an EMPLOYEE. This is because due to the passage of Assembly Bill 5, models are likely considered employees under the “ABC” Test. Further, California courts have previously held that models are employees for purposes of unemployment insurance. 3 It does not matter if you signed a contract that says you are an independent contractor, that is not a be-all-end-all final word on the matter. You can still be considered an employee for the purposes of unemployment insurance. We believe this is the fastest way for you to get benefits.
If you choose to file as an independent contractor, you will apply for PUA. California has indicated that it will begin taking online PUA applications on April 28, 2020.
If you file as an employee, list your agency as your employer. If you have a Form 1099-MISC from the employer, then you will have most of what you need to fill out columns A and B. You can google their address as well.
The reason they are telling you to file this way varies from state to state. In some states, case law might indicate that you are an independent contractor. In other states -- where case law and labor law indicates that models are employees, however -- agencies may be encouraging you to file as an independent contractor because they are illegally misclassifying you. The largest incentive for misclassifying workers is that employers are not required to pay Social Security and unemployment insurance (UI) taxes for independent contractors. These tax savings, as well as savings from income and Medicare taxes results in employers saving between 20 to 40 percent on labor costs. 4 What does this look like? A 2013 report from the Treasury Inspector General for Tax Administration concluded that employers can save an approximate average of $3,710 per employee earning an annual income of $43,007 when they misclassify the employee as an independent contractor. 5
If you are eligible for UI, your first payment will generally be made in two to four weeks from the time you file your claim.
- NEW YORK: If you applied for Unemployment Insurance online, you were asked whether you wished to receive your benefits by direct deposit or debit card. If you applied over the phone, you will receive your benefits via debit card. New York no longer issues benefits by check.
- FLORIDA: If you applied for benefits, you can either receive them by direct deposit or debit card. If you want to use direct deposit, you must provide your bank account number and routing number. Alternatively, you can request a Reemployment Assistance debit card. Benefit payment options can be changed when you are requesting your weeks. Login to your CONNECT account and select “View and Maintain Account Information” on the left-hand navigation menu.
- CALIFORNIA: California issues benefit payments for unemployment insurance claims using the EDD Visa Debit Card. Once your first benefit payment is issued, Bank of America will mail your card and additional information within five days. You can activate it online here or by calling 1-866-692-9374 (US) or 1-423-262-1650 (outside US). If you prefer direct deposits, you can set up a one-time or recurring direct deposit transfer to the financial institution of your choice at no cost to you. Visit here or call Bank of America Debit Card Customer Service at the phone number on the back of your card.
- NEW YORK: If you are approved as an employee New York generally determines your weekly unemployment benefit amount by dividing your earnings for the highest paid quarter of the base period by 26, up to a maximum of $504 per week.
If you are approved as an independent contractor you are eligible to receive the same amount of money as you would be entitled to if you were filing under your state’s UI. Unlike the state UI system, however, the PUA has a higher minimum payment at the low end. The minimum payment under New York UI is $104. In contrast, the minimum benefit under PUA is between $172 and $182. Basically, you can get the same maximum payment with either, but your minimum payment for PUA is higher than the minimum payment for UI.
- FLORIDA: If you are approved as an employee: The state offers a maximum of $275 a week — based on your earnings — for up to 12 weeks. An additional week is added for every 0.5 percent increase in the state unemployment rate above 5 percent. The maximum is 23 weeks when the unemployment rate gets above 10.5 percent.
If you are approved as an independent contractor you are eligible to receive the same amount of money as you would be entitled to if you were filing under your state’s UI. The minimum payment under Florida UI is $32. The minimum payment under PUA will be half of Florida’s average weekly UI payment, a number that we don’t currently have.
- CALIFORNIA: If you are approved as an employee: The California Employment Development Department (EDD) determines your weekly benefit amount by dividing your earnings for the highest paid quarter of the base period by 26, up to a maximum of $450 per week.
If you are approved as an independent contractor you are eligible to receive the same amount of money as you would be entitled to if you were filing under your state’s UI. Unlike the state UI system, however, the PUA has a higher minimum payment at the low end. The minimum payment under state UI is $40. The minimum payment under PUA will be half of California’s average weekly UI payment, a number that we don’t currently have.
Everyone who files a claim, whether they ultimately receive benefits under state UI or the PUA, will receive an extra $600 per week until the end of July 2020 on top of the other benefits if you are unemployed or underemployed due to the COVID-19 crisis (e.g. If you qualify for $200 in state UI/week then you get $200 + $600= $800/week).
This isn’t really known yet. It may take time for the US Department of Labor to coordinate with state unemployment agencies to get the money flowing. It could potentially be longer for freelancers and independent contractors to get the benefit -- compared to people who are getting regular state UI -- because they are waiting for the government to set up an entirely new program.
No. This is illegal and can be reported to your state’s unemployment agency as retaliation.
Unemployment insurance is available to persons who are either unemployed or underemployed for no fault of their own. You do not need to be formally furloughed or fired to file an unemployment claim. Again, you can file a UI claim in NY as soon as a week goes by when you worked less than four days, or earned less than $504.
2See e.g., In re Claim of Chopik, 145 A.D.2d 747, 535 N.Y.S.2d 268 (App. Div. 3rd Dept. 1988); In re Claim of Caufield-Ori, 233 A.D.2d 558, 649 N.Y.S.2d 512 (App. Div. 3rd Dept. 1996); Matter of Waggoneer (Preston Leasing Corp.—Commissioner of Labor), 137 A.D.3d 1380 (App. Div. 3rd Dept. 2016).Manual, Volume 8, Part G, Chapter 10
3See e.g., Zaremba v. Miller, 113 Cal. App. 3d Supp. 1, 5, 169 Cal. Rptr. 688, 689 (App. Dept. Super Ct.1980) (classifying a photography model as an employee rather than an independent contractor even though she only worked two hours for a photographer, focusing on the photographer’s control over the work.
4 “Statement of Seth D. Harris Deputy Secretary U.S. Department of Labor Before the Committee on Health, Education, Labor, and Pensions U.S. Senate.” U.S. Senate. Committee on Health, Education, Labor, and Pensions, U.S. Department of Labor, June 17, 2010. Retrieved from http://www.dol.gov/_sec/newsletter/2010/20100617-2.htm
5See e.g., Employers Do Not Always Follow Internal Revenue Service Worker Determination Rulings.” Treasury Inspector General for Tax Administration, June 14, 2013. Retrieved from http://www.treasury.gov/tigta/auditreports/2013reports/201330058fr.pdf.
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