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For Freelance Artists, Workers Compensation Is Usually Out Of Reach

flickr/Jose A. Pérez

How do you quantify the impact of a poem not yet written or a song not yet performed?

Two years ago, I caught fire at one of the eight jobs I was working at the time. The scars from the second-degree burns on my hip are still slightly visible. I consider myself lucky.

But today, I’m still troubled by what could have been.

My injury happened on site at a catering event. It was 4:30 p.m.; I had been at work since 5:00 a.m. and was scheduled for another shift with another company at 5:30 p.m. Before the pain of my pants being literally on fire could even reach my brain, I was panicking about being able to make my second shift. If I called out, would they believe me? Would I jeopardize future shifts with them?

The second thread of my panic: Would I be able to perform in 24 hours? I had been preparing for the opening of a four-night run for months. How was I supposed to dance with the skin on my right hip burned off?

I missed my second catering shift but wound up performing the next night. It hurt but was fine. Somehow, my employer agreed without question to pay for all of my medical bills. It was easier for them (and probably for me) to process my receipts and cut me checks outside of the Workers Compensation Board than to slog through the system.

How was I supposed to dance with the skin on my right hip burned off? Click To Tweet

Still, I began having conversations with legal assistants about whether this could be a viable workers’ comp case. When the tears stopped and the painkillers kicked in, I felt confident. I was a dancer. Who knew how this might affect my future projects? I luckily just caught the deadline to file a claim to the board within 30 days of the injury.

As it turned out, this probably wouldn’t have made a difference. I was naive, and so was the sympathetic legal assistant I spoke to for over an hour. Lawyers at multiple firms all agreed I had no case. If I could earn income otherwise, my employer owed me nothing. All of a sudden, having multiple skills was an obstacle, not an advantage. When I asked for compensation for the pain and suffering I experienced, they offered me $75 on the condition that I sign an agreement barring me from suing them in the future. By paying for my bills, they were paying me to shut up. My pain and suffering wasn’t worth a measly $75; my silence definitely wasn’t either.

Stories like mine are common because freelancers are everywhere. In 2017, the Freelancers Union and Upwork released the results of a comprehensive study on the independent workforce. They found that over a third of the U.S. workforce freelances (57.3 million people), bringing $1.4 trillion to the economy each year.

Today’s WeWork iteration of a freelancer has been filtered through Silicon Valley’s branding as someone who sips coffee in a co-working space while coding fancy things on their computer. But freelancers have and will continue to be people who also take care of and educate your children (, cook and serve your food (restaurants and catering), clean your homes (Task Rabbit), drive you around (Lyft, etc.), and do the temp work that offices don’t want to pay someone full-time to do. We are part of the grease that keeps the United States functioning.

It is no coincidence that many artists have found themselves freelancing. It can offer folks a reasonably steady (if seasonal) stream of income that can facilitate the time and headspace to create things. Nearly every artist I know refers to their side hustles as the income for the work they actually want to do. The gestational phases of an artist’s process often evolve unsupported by a direct paycheck or audience. Having one’s work recognized in the field requires this time, and it’s not surprising that so many artists choose and are well-suited for the gig economy lifestyle.

But under this guise of flexibility, employers are actually serving us disposability. My budding “reputation” as a 5-star cater waiter was super important to me in 2016 — it brought me more and better shifts, better assignments on shifts, and kept me thinking I was on track to earn raises. Of course, when I asked for a raise I was told no; instead of giving me what I deserved, they could just find someone else to pass the same tray of hors d’oeuvres for less. In a capitalist economy, employers are going to trim wherever they can to pay workers less — lower salary and no benefits. As long as the work gets done, who cares if we can barely make ends meet or prepare for an emergency fund?

All of a sudden, having multiple skills was an obstacle, not an advantage. Click To Tweet

Not only are artists often contributing to many sectors of the economy without adequate pay, we’re constantly justifying the value of our artistic work to everyone who makes a passing judgement. With direct earnings from babysitting or bartending, someone’s “value to society” is made tangible and obvious. But how do you quantify the impact of a poem not yet written or a song not yet performed?

With the federal budget allocating more than 3,600 times as much funding on the military as on the NEA, the United States’ per capita spending on the arts is miniscule compared to other wealthy nations. Again, artists’ participation in the gig economy is convenient for the economy and for artists. But working multiple jobs can only increase the likelihood of an injury, which, combined with the lack of a safety net protected by law, can be devastating, not just for an individual but for the loss to society of art that wasn’t made.

I spoke to Elisa Clark, a former dancer with Alvin Ailey American Dance Theater who has been navigating the New York State Workers’ Compensation Board since getting ankle surgery in 2017. Even though she was an employee of one of the largest dance organizations in the United States, she has still struggled to get the treatment she needs. Her lawyer told her, “The system is designed to wear you out. Most people just give up because it’s a headache. But stay persistent.”

When seeking treatment, the Board has a 30-day window to respond to a claim. “From my perspective, it seemed that Workers Compensation was more focused on finding reasons to deny treatment, rather than help injured workers get back to work,” said Clark. In one instance, the doctor’s notes were deemed insufficient. In another, they just never replied. “It seems like if you have a claim, you are bound by the rules, but the Board doesn’t seem to follow the rules that apply to their response.”

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As of May 2018, she was still waiting on authorization for further exams. While her recovering ankle may meet the legal requirements for mobility, it certainly wasn’t mobile enough for a full return to the kind of dance work she was performing, and was continuing to get offers for while on the mend. At each visit, her doctor had to measure her disability as a percentage, quantifying an experience that is always relative to the body at hand.

Beyond being a dancer requiring a greater range of motion than the average person, Clark said, “As a person, I can’t do things equally. We as dancers know that any significant imbalance can cause a chain reaction of additional injuries and/or long-term physical issues.” But the law’s consideration of disability doesn’t seem to take into account this inevitable future.

Even athletes, people whose virtuosic able-bodiedness are central to their work and are recognized by society at large, don’t seem to have it much easier. In 2014, the NFL won a legal battle that barred most pro players from filing workers comp in California. The NCAA conceived the term “student athlete” to skirt workers comp obligations for the players that bring in billions but receive none of it. Cirque du Soleil has had performers become injured or even die because of their work, and here too, workers comp support has been capped by state laws. The advent of the workers’ comp industrial complex mirrors other systems that have grown out of an economic system (see the military, prison, medical industrial complexes) where workers’ rights have been steadily eroded in favor of corporate profits.

Let’s not have these glitzy displays of physical ability erase the fact that all work is embodied. Crunching numbers, sketching on a notepad, and editing film all engage our bodies in some way or another. What separates an injured freelance artist from a salaried worker is that the system at hand fails independent contractors at large and erases the specific nature of an artist’s work from consideration in the medical care provided. That a body can be contorted to do something else that generates income exploits the versatility of freelance artists and further negates our creative work. Rarely do artists generate the entirety of their income from their work, but that doesn’t make the art less integral to the communities it reaches. What makes a rich arts culture isn’t just the hyper-successful celebrities. It’s a society that supports artists at every stage of their career and takes full care of its artists when injuries arise.

So how’s a multi-skilled freelancer supposed to navigate the system designed to exploit us with its inconsistent red tape?

Clark suggests organization as a strong defense: “Saving all my receipts, doctor’s notes, pay stubs, etc, to show exactly how much I earned during the time following surgery. It seems that the more organized I was with the facts, the less the ‘system’ could argue with me.”

You could also demand a contract. The “Freelance isn’t Free Law” that passed in NYC in 2017 only protects workers earning over $800 in a 4-month period. Still, asking to sign a contract with an employer for any project can facilitate self-advocacy, clarifying terms for all parties involved on not only benefits but timely compensation.

The artists-service organization Fractured Atlas suggests that most insurers won’t support workers comp for project-based, temporary work. So the responsibility ultimately falls on freelancers to advocate for this support in contracts because employers are unlikely to want to front the costs.

The Actors Fund offers the kind of collective safety net for artists that should be required by law. Beyond careful recordkeeping, contracts, and the support of organizations, are there possibilities for the kind of union that are starting to re-surge among pro athletes?

That a body can be contorted to do something else that generates income exploits the versatility of freelance artists. Click To Tweet

With artists, our networks are so interwoven, the possibilities for organizing could be easier in some respect. A big part of being an artist is consuming and participating in the work of our peers, resulting in many tight pockets of communities. But with so much work happening off books, and work in temp industries being seen as so replaceable, it’s easy to feel demoralized about our collective power.

But this also happens if we zoom in too tightly on artists alone, who statistically tend to come from more privileged backgrounds in order to bear the risks intrinsic to this lifestyle. When considering the broader workforce that comprises the gig economy and the shadow economy, it’s of no surprise that most workers are of color and many are immigrants, who face further systemic challenges to getting care in event of an injury. It’s important to acknowledge the difference between those who willfully participate in the gig economy to make room for their art and those whose primary viable options are boxed in by the shadow economy. It’s easy to imagine all the people who don’t have the means to even be considered for entry into the exclusive world of sanctified art.

But we need to imagine what this world could look like. Recognizing the intersectionality for artists of color, immigrants artists, disabled artists can uplift not only our artist work but our collective possibilities for organizing in a system where workers and consumers both lose. The food-deliverer protests in the UK and Australia can provide some examples here. If we imagine how many of those workers are also artists, how many of the workers around us all the time are also artists, it becomes harder not to sense how artists are everywhere all the time, trying to get through the day so that they can make their work.

No one’s going to pay us to organize, but to protect the longevity of our bodies and all of the work we contribute, it’s another hustle that deserves our attention.