What is lost when contracts bar freelancers from discussing pay?

October 29, 2018

When I began freelancing, an editor from a local news site approached me with an assignment. The pay seemed too low for the time commitment, so I declined. Not long afterward, a fellow freelancer mentioned that he’d been approached with the same assignment for higher pay. I don’t know why this pay disparity happened—whether the editor got clearance to offer a higher fee after I declined, or whether something more insidious such as sexism was at play. But I know this: If the outlet approaches me again, there’s room to push for more money. I owe that knowledge to another freelancer.

The power to talk with other freelancers about money gives us the information and strength to negotiate for fair conditions and sustain our work. Such conversations are often hushed; they happen via Twitter direct messages, Facebook groups publicized through word of mouth, emails among trusted networks, chats over coffee. For freelancers, these conversations can be crucial to survival in a business where they lack the support and advantages of established companies.

So recently, when two organizations offered me contracts that prohibited necessary discussion of pay, it felt like a new twist in freelance survival. Freelancers who have written for Newsweek and America’s Test Kitchen told me on-the-record that they have received contracts from those companies that either specifically bar discussing payment amount for an assignment or prohibit disclosing contract terms altogether. For example, a contract for America’s Test Kitchen provided by a freelancer states: “Contributor will not disclose to any third party the existence or the terms of this agreement (other than to contributor’s financial and legal advisors on a need-to-know basis).” America’s Test Kitchen did not respond to requests for comment, and Newsweek declined to comment.**

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“It’s just another example of freelancers really being at a disadvantage when it comes to the power dynamics in the relationship between publication and writer,” Josh*, a freelance journalist, says.

Freelancers are really left on their own. That’s really a hard place to be when you’re trying to figure out how to negotiate, what gigs to take, which ones you need to pass up because they’re not going to be worth your while.

In the past, freelancers have been reluctant to talk about what they’re paid, but there has recently been a push for transparency, says David Hill, first vice president of the National Writers Union, which represents freelance writers.

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“These non-disclosure agreements are probably a response or a reaction to that push we’ve seen over the past couple of years among people that work in media to be more open about their rates and their salary,” says Hill.

Caitlin Pearce, executive director of Freelancers Union, recently spoke with a freelancer who wanted to raise her rates. After speaking with colleagues, the freelancer realized she had been undercharging for her work all along, according to Pearce.

“If there are legal restrictions placed over being able to freely share this kind of information, particularly in the absence of having a union or another entity that can represent you, freelancers are really left on their own,” says Pearce. “That’s really a hard place to be when you’re trying to figure out how to negotiate, what gigs to take, which ones you need to pass up because they’re not going to be worth your while.” (Disclosure: I’m a member of Freelancers Union.)

Employees aren’t subject to such non-disclosure clauses, which have been illegal since the enactment of the National Labor Relations Act in 1935. Earnings discussions help ensure that companies practice fair payment, according to Jeff Hermes, deputy director of the Media Law Resource Center. “That’s what allows employees to check with one another and make sure an employer isn’t engaging in discriminatory practices,” he says. “If employees aren’t allowed to discuss their pay, it can be very hard to detect that women, for example, are being systematically underpaid in the workplace.” But there are no such legal protections for freelancers against contracts that would effectively gag them from discussing payment. That lack of protection can perpetuate an ugly status quo: In the creative economy, self-employed women make 32 percent less than men for the same job, according to business website HoneyBook’s examination of 200,000 invoices and survey of more than 3,000 respondents.

It’s definitely a trend. Contracts seem to be getting murkier and worse for freelancers across the board.

If a worker is truly a freelancer and a payment NDA is enforceable, then a freelancer who discusses compensation could be subject to a breach of contract, says Hermes. Consequences could include a fine and a court order to bar future pay discussion.

Frustration with a lack of pay transparency drove Manjula Martin to create Who Pays Writers?, a freelance rates reporting website. Martin, whose site includes listings for Newsweek, calls payment-related NDAs in freelance contracts “disturbing.”

“It’s a disturbing trend to hear that publications are asking their freelancers to sign [non-disclosure agreements] about payment,” says Martin, editor of Scratch, an anthology of essays and interviews with authors about their experiences with making a living. “The saying is true: Information is power, and I think an NDA about payments can only benefit one party, and that’s the party who’s signing the checks.”

In the past decade, Martin has seen a rise in media companies asking freelancers to permanently relinquish the potentially profitable copyright of their work. Asking to not discuss aspects of contracts, especially money, feels like the next step.

“It’s definitely a trend,” she says. “Contracts seem to be getting murkier and worse for freelancers across the board.”

Hermes says the best reaction to a payment NDA depends on what other contract items a freelancer wants to change or remove.

“If they don’t care about it, then you can make a decision that it’s not worth spending your negotiation credits on trying to have this provision taken out. If it does bother, you could ask to have it removed,” he says. “If something bothers you, it’s certainly worth asking because you never know if that’s something they might just take out.”

I objected to the two contracts I received that included payment NDAs. Neither of the two editors found my objections onerous. After I asked, they removed or changed the payment NDA clause with no hesitation.

While I successfully negotiated, not all freelancers read contracts closely or push back. Instead, freelancers must analyze their options and the costs associated. “It doesn’t seem like a good hill to die on,” says Jennifer*, a freelance journalist, who says she negotiates instead for longer deadlines, higher rates, and more rights.

Michael,* a freelance journalist, signs payment NDAs while negotiating for other rights, such as intellectual property. Holding the copyright to a work can prove profitable, should the piece make an appearance in an anthology or be adapted into another media form.

“You can push back, but there’s only so much,” says Michael. “Usually, there’s another person willing to do it.”

*For this story, CJR provided pseudonyms to sources who asked for anonymity in order to speak freely about freelance pay without fear of recrimination.

**Correction: A previous version of this story incorrectly identified a News Deeply freelance contract as containing a non-disclosure clause concerning payment. CJR regrets the error.

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Adina Solomon is a freelance journalist based in Atlanta who writes about a range of topics—everything from business to food to death to city design and beyond. Her work has appeared in The Washington Post, US News & World Report, The Atlantic's CityLab, and other national and local outlets.