Navigating the turbulent waters of freelance work in New York City just became less daunting with the introduction of the Freelance Isn’t Free Act (FIFA). For those who’ve ever been stiffed on a payment or struggled with vague contract terms, FIFA is your safeguard. But merely knowing about the act is half the battle; understanding how to effectively leverage it is the key. In this guide, we’ll zero in on precisely that. We will break down the actionable steps freelancers can take to win a FIFA claim, from understanding the criteria that warrant a claim to compiling a rock-solid case and finally submitting it for judgment. If you’ve ever wondered how to make a claim under FIFA, look no further. This is your comprehensive playbook to ensuring that your hard work is duly rewarded.
- How to File (and Win!) a Freelance Isn’t Free Act Claim
Section 3: How to File (and Win!) a Freelance Isn’t Free Act Claim.
Now, let’s delve into the core reason you’re here. Thanks to FIFA’s provisions, freelancers possess multiple avenues to recover outstanding payments. While none of these methods are mandatory, each serves as a powerful tool in ensuring you receive your due. Indeed, when you employ these measures collectively, the likelihood of securing not just the unpaid invoice but potentially even more rises substantially!
Option 1 – File an Administrative Complaint
Step 1 – File a complaint with the New York City Office of Labor Policy & Standards.
FIFA allows freelancers seeking payment for past work to file an administrative complaint with the Office of Labor Policy & Standards (“OLPS”).
The OLPS is governmental office within New York City government charged with investigating and enforcing alleged FIFA violations.
Pro Tip: Be sure to attach any supporting proof of your claim to your complaint. Examples may include a copy of your invoice, pictures showing the work was complete, emails asking for payment, or copies of a written contract, if one exists.
Including these materials will make it more likely you will win your claim.
Step 2 – Allow the OLPS to investigate.
Within twenty (20) days of receiving the complaint, the OLPS will forward it to the company or person who hired you. The hiring party has twenty (20) days to respond to the complaint and identify any reasons why the freelancer has not been paid in full.
If the hiring party responds, the OLPS must forward the response to the freelancer within twenty (20) days. If the hiring party fails to respond, the OLPS will send a “Notice of Non-Response” to both the hiring party and the freelancer by certified mail.
The freelancer can then use the Notice of Non-Response to flip the burden of proof to the hiring party in any lawsuit (see below for more info).
That is, the Notice of Non-Response creates a presumption in any lawsuit that the hiring party is guilty of whatever they were charged with in the complaint. The hiring party then has the burden to prove why they should not have to pay the invoice as opposed to the freelancer having to prove why the invoice should be paid. This is very, very powerful in court.
Step 3 – See what the OLPS decides.
The OLPS cannot force the hiring party to pay you. It also does not have the power to award double damages. Only a court can do that.
Regardless, the OLPS’s decision may be helpful in your lawsuit. The OLPS process is fairly quick and is usually over in less than 90 days. The OLPS process also forces the hiring party to defend itself.
So, for example, if the hiring party claims the freelancer’s services were incomplete or unsatisfactory, you will get to learn this before you spend the time filing a lawsuit.
Alternatively, the OLPS may find the hiring party has no reasonable excuse for its failure to pay you, which you can use as evidence in court.
Option 2 – Send a Demand Letter
A well-crafted demand letter can be a potent tool in urging payment, especially if it intimates the prospect of a lawsuit or a FIFA complaint to the OLPS. Here are the hallmarks of an effective demand letter:
Professional Tone: Always keep it courteous and professional. Steer clear of personal jibes or derogatory remarks.
Clarity in Language: Ensure the letter is grammatically correct, with accurate punctuation and spelling. This not only adds credibility but also showcases the effort and seriousness behind the demand.
Firmness: While maintaining politeness, be resolute in your intent to obtain payment.
Chronological Outline: Briefly outline the history of interactions between both parties for context.
Specifics: Detail the essential facts – the date of hiring, nature of work delivered, the original payment due date, the agreed amount, and prior attempts made to secure payment.
Clear Demand: Clearly state the expected payment within a balanced timeframe. A very short deadline might be dismissed as unreasonable, while an overly lengthy one might lead to unwarranted delays.
Consequences: Conclude by laying out the potential repercussions – be it an OLPS complaint, a lawsuit, or both – should the payment not adhere to the letter’s stipulations.
Pro Tip 1: Avoid the temptation to be emotional in your demand letter.
Even though you may be hurting inside because you feel taken advantage of, use a strictly business tone in your letter. Avoiding emotional language increases the chance of getting the result you want.
Pro Tip 2: It is a good idea to send the demand letter by multiple methods, including email, regular mail, and certified mail. This will ensure the hiring party actually receives the letter and cannot later claim they did not get notice you were seeking payment.
The Freelancers Union also provides a good template for a demand letter.
Pro Tip 3: Demand letters sent by attorneys typically have a much higher success rate because recipients tend to take them more seriously. This is not to say that you won’t be successful writing and sending your own demand letter, but demands from non-attorneys are often, sadly, ignored.
Option 3 – File a Lawsuit for Non-Payment
Navigating the complexities of OLPS complaints and lawsuits might feel like threading a needle. Let’s break it down:
Opting to send a demand letter is a choice, as is submitting an OLPS complaint. If you jump straight into filing a lawsuit without first lodging an OLPS complaint, the OLPS will sidestep your grievance, guiding you back to the courtroom. But, by taking a sequential approach – first filing an OLPS complaint, waiting for its conclusion, and only then heading to court – you’re on solid ground. This remains true irrespective of the OLPS’s judgment. To put it another way, even if the OLPS rules in favor of the hiring party’s reason for non-payment, you retain the right to initiate a lawsuit.
Pro Tip: Think about consulting a legal expert before stepping into a lawsuit. Even in small claims court, processes can be intricate, and a proficient attorney can adeptly steer you through. Drawing from Abraham Lincoln’s wise words: “He who represents himself has a fool for a client.”
Precision is paramount in legal battles. A seasoned lawyer will often zone in on nuances that might elude the untrained eye. And here’s the silver lining: If you win a FIFA claim, you’re legally poised to reclaim your attorney’s costs.
This puts the scales heavily in favor of collaborating with a legal professional. Plus, data supports that claimants, when represented by counsel, generally have enhanced success rates, garner larger settlements, and achieve results at a brisker pace.
Step 1 – Determine what type of court in which to sue.
First, consult the penalties analysis in “Section 2: Why is FIFA so Helpful to Getting Freelancers Paid?”
- If you believe you are owed less than $10,000, you should file your lawsuit in NYC Small Claims Court.
- If you believe you are owed between $10,000 and $25,000, including your recovery of double damages under FIFA, you must file your lawsuit in NYC Civil Court.
- If you believe you are owed more than $25,000, you must file your lawsuit in New York “Supreme Court.” We typically file most of our cases in New York County Supreme Court, but every situation is unique.
Step 2 – Determine what county in which to sue.
As the plaintiff, you get to choose the lawsuit’s “venue,” meaning in which county you file suit.
Venue can be in the county in which either you or the hiring party resides or the county in which you did the work. It’s entirely your choice.
Pro Tip: If you have the option between multiple venues, pick the venue that is most convenient for yourself and most inconvenient for the defendant.
The available counties are New York County (Manhattan), Kings County (Brooklyn), Queens County (Queens), Bronx County (The Bronx), and Richmond County (Staten Island).
Step 3 – Draft a Statement of Claim.
Start with the Statement of Claim form. This form includes only the minimum amount of information you need to support your claim.
It is wise to include additional information such as the history between the parties, when you did the work, how much you are owed, how many times you attempted to obtain payment, etc.
If you sent a demand letter or filed an OLPS complaint before filing your lawsuit, you can recycle the information you used in these documents in your lawsuit. You might even attach these documents as exhibits to your Statement of Claim.
Step 4 – File your Statement of Claim.
File your statement of claim with the County Clerk for the county in which you are filing your lawsuit. The current locations for the different county clerks are:
- Bronx County – 851 Grand Concourse #124, Bronx, NY 10451; (718) 618-3300; https://iapps.courts.state.ny.us/ctclrk/home
- New York County – 60 Centre Street Room 161, New York, NY 10007; (646) 386-5955; https://www.nycourts.gov/courts/1jd/supctmanh/county_clerk_operations.shtml
- Kings County – 360 Adams Street, Room 189, Brooklyn, NY 11201; (347) 404-9772; https://www.nycourts.gov/courts/2jd/kingsclerk/
- Queens County – Queens Supreme Court Building, 88-11 Sutphin Boulevard Jamaica, NY 11435; Executive Office Room 105; General Office Room 106; http://nycourts.gov/COURTS/11jd/queensclerk/index.shtml
- Richmond County – 130 Stuyvesant Place, 2nd Floor, Staten Island, NY 10301 (718) 675-7700; http://www.richmondcountyclerk.com/information.htm
It will cost $15-20 to file the Statement of Claim. This is considered a litigation “cost,” and you can ask the judge to reimburse you for the cost at your hearing.
The Statement of Claim can also be filed online with a third-party service called TurboCourt. TurboCourt requires you to set up an account with a username and password.
Many people find it easier to file online, but others prefer to file documents in person with the court clerk to ensure the document is properly filed.
Step 5 – Have the defendant served.
It’s critical that the defendant receive notice of the lawsuit. You may have to pay an additional fee for proper service, but this is also a litigation cost that can be recouped later.
The court clerk can help you ensure the defendant is properly served. Usually, the clerk will mail a certified copy of the Statement of Claim to the defendant.
If the defendant cannot be served by mail, the clerk will inform you, and you have to either hire a process server or have someone other than yourself personally serve the defendant.
Now you’re off to the races!
Step 6 – Obtain a hearing date and prepare for trial.
If you need help obtaining a trial date, call the court clerk and ask what the proper procedure is to obtain a date.
You may want to conduct “discovery” before the hearing.
Discovery is when you request documents or information from the defendant, which they may be obligated by law to provide. Hopefully, you already have all the documents you need, since conducting discovery takes time and slows down the process before your hearing.
You may need to file a motion before your hearing. A motion is simply a request for the court do something. The Small Claims Forms page is a good starting resource.
An example of a common motion is a “motion to adjourn” (also called a motion for continuance). You might make a motion to adjourn if you feel you need more time to properly prepare for the trial. Courts will often grant the initial request to adjourn.
Step 7 – Conduct the trial.
On the day of trial, be “Quadruple-P,” which means Polite, Professional, Prepared, and Persistent.
Have all your documents and proof in order and ready to present. Have copies ready for the defendant and the judge.
The most prepared litigant is the winner more often than not.
Prepare an outline of questions you may want to ask of the defendant. If you think the defendant is going to make a particular defense, be prepared to poke holes in that defense and show why it is not persuasive.
Here is an example of a potential defense and how to combat it:
What if the defendant says they should not have to pay because your work was not good? Make them admit they used or relied on the work. Or, make them admit they did not complain about the quality of the work after you sent your invoice. This will cast doubt on their credibility.
If you need witnesses, be sure they show up on your behalf. Coordinate with them beforehand so they know the date and time of the hearing.
Prepare an opening statement that will summarize your view of the lawsuit and what you will prove to the judge when you present your evidence.
Prepare a closing statement that will remind the judge of the most important evidence and request a specific sum of money. Ask for “judgment” against the defendant.
Step 7 ½ – Either before or after trial, see if you can settle the case.
It’s possible the defendant will ask you to settle the lawsuit before or even during trial. If this happens, you are free to settle the lawsuit on any terms that are acceptable to you.
Settlements typically include payment by the defendant in exchange for dismissing the lawsuit and your promise not to sue over the same issue again in the future. They might include other terms, such as confidentiality and non-disparagement (i.e., an agreement not to badmouth each other when the case is over).
Pro Tip 1: Don’t be greedy. Money today is worth more than possible money in the future. I’m reminded of the phrase, “one in the hand is worth two in the bush.”
Even though you might be legally entitled to double your unpaid invoice under FIFA, if the defendant offers enough money to fully cover your unpaid invoice, all your court costs, and a little bit of interest, you would be wise to accept the deal.
Even if you’re nearly certain you will win, settling eliminates the uncertainty over whether you can successfully collect after trial.
Pro Tip 2: If you are close to settling, do not dismiss your lawsuit until you have received payment from the defendant. The existence of the lawsuit is your leverage to ensure the defendant will pay.
Step 8 – If you win, work with the sheriff or marshal to collect payment.
If you win, the court will issue a “Notice of Judgment” and mail it to both you and the defendant. This is the critical piece of paper that carries the force of law and obligates the defendant to pay you the amount of the judgment.
The judgment may include interest, so the longer it remains unpaid, the more you are owed.
By now, the defendant would be wise to just pay the judgment. Try calling, emailing, or mailing them again giving them one last chance to pay within a short, but reasonable deadline.
If they still refuse to pay, you cannot put them in jail, but you can seek an “execution.”
An execution is where the sheriff or marshal literally goes to the defendant’s office or place of business and takes money or property in order to satisfy your judgment.
There are other legal steps and potential mechanisms to collecting a judgment, but they are outside the scope of this guide.
Finally, please be sure to check out additional resources at the Freelancers Hub.
- In the first section, what FIFA is and how it works.
- In the second section, why FIFA is so great at helping you get paid for your outstanding invoices.
- In the third section, how to make (and win!) a FIFA claim
- In the fourth and final section, thoughts on your journey to collect what you are rightfully owed.