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ON YOUR OWN

Freelancers aren’t protected by equal employment laws. So what should they do when they face discrimination?

REUTERS/Aladin Abdel
The freelance life comes with fewer legal protections.
  • Michelle Nickolaisen
By Michelle Nickolaisen

Contributor

Published This article is more than 2 years old.

A fellow freelancer once told me she got an angry phone call from a client after sending an invoice for the previously agreed-upon rate. Apparently, the client didn’t expect her to actually bill for so much—because it was ridiculous for someone who was, as he put it, “just a housewife” to bill at those rates. Another freelancer told me she had a client discontinue working with her, with no notice, as soon as he found out she was pregnant. Other stories of discrimination I’ve heard from other freelancers (and things I’ve experienced myself) range from mildly disconcerting to blood-boilingly infuriating.

But here’s the thing: If you’re a freelancer facing discrimination, you can’t file a lawsuit. Because freelancers aren’t covered by equal employment laws.

In other words: a client could fire me tomorrow because of my sexual orientation or religious beliefs, or engage in any other kind of discrimination covered under EEOC laws, and I wouldn’t be able to do anything about it.

How did this happen?

In 1935, in the middle of the great depression, the National Labor Relations Act (NLRA) was passed as part of Roosevelt’s New Deal. At the same time, the National Labor Relations Board (NLRB) was created to investigate unfair labor practices. Originally, the NLRA stated that independent contractors weren’t afforded the same protections as employees, but didn’t clarify what separated the two groups—that distinction was left up to the NLRB to make. Agricultural and domestic industries were excluded from protection under the NLRA out of sheer racism (since most of the workers in those categories weren’t white).

Today, there are two exceptions where a freelancer might have legal recourse when experiencing discrimination:

  1. The discrimination crosses over into criminal activity (sexual assault, for example). In that case, you can still bring charges for whatever the criminal activity was. You’re still not covered under EEOC laws, but you can take action.

Let’s say your case doesn’t fall into either of these categories. What options are you left with?

Talk to HR

When I contacted HR professionals to ask whether or not freelancers should bring cases of discrimination to them, their answers ranged from “Absolutely, I’d want to try and fix it” to “They can, but they shouldn’t hold their breath” to a few (slightly soul-crushing) comments along the lines of “HR’s job is to protect the company—they don’t care about contractors at all.”

Thursday Bram, a fellow freelance writer and creator of the Responsible Communication Style Guide, told me she’s had success in talking to HR—but only when approaching it the right way:

“My experience is that internal HR only cares about freelancers if something is going on that opens the company up to legal issues. But that includes a huge set of things, ranging from sexual [assault] to misclassification for tax purposes. Any time I’ve needed help from internal HR and it was something I could sue over later (or I framed it as something I could sue over later), I’ve received what I needed.”

Of course, she also notes this is only going to work if the client or company is large enough to have an HR person. If you’re working with a very small business or one person, there might not be an HR person to talk to.

Throughout the process, she said in our conversation, you should save as much communication as possible—everything from emails to screenshots of Slack archives (and recordings of Skype calls or other video/audio conferences, assuming your state is a one-party consent state). Whether the buck stops with the HR person or you do wind up in court, having proof to back up your side of the story can go a long way.

Think before you tweet

The temptation to warn fellow freelancers of your terrible experience, shouting it from the mountaintops of Twitter or Medium, can be strong—but it’s not always the best thing to do.

Paula Brantner, a lawyer at Workplace Fairness, a worker’s rights organization offers this advice:

“That’s sometimes the only remedy you have—naming and shaming someone. The company will often make noises about suing, and I recommend that anyone planning an expose on a company that has more resources than they do consult with an attorney to talk about the possible fallout. On the other hand, oftentimes the company will talk to their lawyers in cases like these and be told it’s not worth it to go after whoever—it just makes the company look worse.”

Even if you write a post about the incident and change the names of the people involved, the internet can be good at sleuthing. Case in point: this post, in which a former employee wrote about being scammed by a company. Within 24 hours, the identity of the company (and founders mentioned in the article) had been uncovered and published.

Be aware of potential consequences of calling out a client. The post may show up on the first page of Google results for your name, and other companies may brand you as unprofessional. These consequences might be worth it to you, and that’s fine, as long as you know what you’re getting into.

Take action to protect yourself in the future

After dealing with a problem client, here are a few things you can do to prevent similar incidents in the future:

Vet your clients up-front

Bigots don’t necessarily walk around carrying a big sign that says, “I think you have less value as a professional and a human being!” Unfortunately, that leaves the onus on you as a freelancer to figure out which people are likely to be problem clients up front.

One way to do this is by including a values policy on your portfolio page. I added one to my site, after being inspired by Andie Katschthaler’s note on her portfolio:

Will it turn some people off? Sure. But do you want to work with someone who’s turned off by a statement that says you don’t want to work with bigots? Probably not.

You can also check out your potential clients on GlassDoor or similar sites, to see what previous employees had to say about them. The employee experience won’t be the same as a contractor experience, but if there are numerous reports of a hostile work environment or management, that’s a big red flag. Talking to other freelancers who have worked with the client can also give you an idea of whether you’ll be treated fairly or not.

Add an out in your contract

You’ll want to run the exact language by a lawyer, but you can add a clause into your contract that states something to the effect of, “In the event that I experience or witness discriminatory behavior, including but not limited to [examples go here], I reserve the right to terminate the project immediately and bill for hours spent.” The problem with this solution is that pursuing payment in that instance will be the same minefield as pursuing payment in general—annoying, time-consuming, and often fruitless.

The upside is that, assuming the client agrees to these terms, this gives you a punishment-free out in the event that you do experience discrimination. If your contract binds you to following through with the project, and you walk away mid-project due to discrimination or unwanted advances, you can be legally liable because then you’re the one in breach of the contract. Adding a “discriminatory behavior” clause would help prevent that from becoming an issue (unless the client wanted to contest your decision and take you to court, which many clients won’t do because of the time and cost involved).

Join a union

It might sound old-school, but joining a union can give you a lot of protection. The National Writers Union, for example, is currently in a third round of group grievances against a publisher, dating back to 2012, where they’ve fought for and collected approximately $130,000 for black women freelancers.

Because of the way laws are set up, freelancers don’t have a federally protected right to organize. And so, they are treated as small business organizations, instead of labor protection, and covered under archaic anti-trust laws and treated the same as “racketeering operations,” as Michelle Chen puts it at the Nation. (The Freelancer’s Union, similar to the AARP, partners with insurance companies on products targeted at freelancers and campaigns for legislation in their favor, but it can’t bargain over wages and isn’t technically a union.)

Until the antiquated laws currently in place catch up to the reality of the 21st century workforce, it’s up to us to protect ourselves and each other. Keep an eye out for (and call out) discriminatory behavior when you see it, warn other freelancers where you can, and take action to protect yourself.

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