Nekesha McCary is suing Direct Model Management for thousands of dollars in back wages. She alleges that DMM illegally miscast her as an independent contractor instead of an employee.
This and other pending litigation could have broad implications for models and agencies. Models are widely considered to be independent contractors; this has historically been the primary obstacle to formal unionization for models.
New York Daily News reports:
In papers filed in Manhattan Supreme Court, Nekesha McCary, 33, of Harlem says Direct Model Management saved thousands by classifying her as an independent contractor when she signed on with the agency in August 2009.
She is demanding more than $30,000 in back wages and other unspecified damages.
McCary says that modeling agencies across the industry have financially abused models by treating them as contractors instead of employees.
Agencies don’t have to pay contractors minimum wage, overtime or Social Security taxes or pay for worker’s comp insurance in the same way they would for regular employees.
“These NYC modeling agencies’ collective evasion of wage and hour protections have resulted in millions of dollars in lost wages to these … models and … millions … in illegal profits for these … agencies,” the new lawsuit charges.
McCary’s lawyer, Michael Steger, argues that McCary was an employee because DMM required her to sign an exclusive contract with them, making it impossible for her to work for any other agency.
He says DMM told her where to appear for photo shoots and how to dress and groom herself for clients like L’Oreal, for whom McCary posed in 2009 for hair beauty products.
Court papers also charge that DMM, like most other modeling agencies in the city, deliberately misclassifies itself as a management instead of an employment agency in order to pump up their fees and sidestep other labor laws.
Under state law, employment agencies can charge only a 10% fee on the value of any work their clients get; modeling agencies typically charge 20% and more, the papers say.
Extra agency fees are deducted when, for example, an apparel company refuses to pay an additional 20% fee for the use of a model’s image. If the company doesn’t pay that fee, the model has to pay it under the terms of McCary’s contract and most others.
McCary, whose real name is Nekesha Batchoukou, says in court papers that after she quite DMM in June 2013, she learned that DMM had used her image in a L’Oreal ad. The papers say L’Oreal paid $18,000 for McCary’s image plus an additional $3600 fee but McCary got only $10,000.
Steger says that instead of taking the legal 10% fee or even the 20% allowed in the contract, DMM took 45%.
The federal lawsuit filed last year by Jorache model Eva Agerbrink, 48, of Jersey City made many of the same arguments against her former employer, MSA Models. A motion to dismiss that case is pending in Manhattan Federal Court.
