Skip to main content

Getting What You Want Isn’t Always What You Need: Why California AB5 May Not Be the End-All-Be-All for Models After All

Posted by on Friday, June 25, 2021 in Blog Posts.

By Betina A. Baumgarten

Though the modeling industry’s image is one premised on perfection, little actually is.  Behind the industry’s glamorous allure lies a workforce deprived of basic protections.  Even though California’s Talent Association Act regulates modeling agencies’ licensure and procedural business operations, it is silent as to the rights and protections of models themselves.  Indeed, the law deprives models of protection, leverage, delineated rights or consequential means of recourse, facilitating the “standard practice” of their exploitation and mistreatment.  The modest regulation of the most powerful of industry players – the modeling agencies–explains why their fierce opposition to the California Legislature’s numerous attempts to enact model labor reform, in the end, achieved only minimal success.   However, as it happens in politics, the best way through is sometimes around – which is why the success models long sought may lie in the enactment of AB 5, a bill compelling tech transportation/delivery companies to “employ” their independent contractors.

However, “just because you can doesn’t mean you should.” While in theory, AB 5’s application in classifying models as employees achieves the labor reform models sought; in practice, it does so at the expense of undermining the entire industry for several reasons:  (1) there is no clear “employer;” (2) the industry’s commission based fee structure cannot support an “employee business model;” (3) increased costs associated with having “employees” raises anti-trust concerns in driving out smaller agencies and discouraging competition; and (4) inclusivity and diversity would dissipate as agencies/clients would have to restrict their “employee model” roster to only “it” models, guaranteed sizeable contracts, to stay profitable.

Until AB 5’s application to models is legally challenged, the most immediate path to reform lies in the hands of models themselves.  Instead of trying to reform the industry as it previously had from the outside-in—which takes money and time they lack—success lies in models capitalizing on their greatest asset—their numbers—to affect change from the inside-out.  First, models need education and mentoring to empower and afford them industry leverage.  Second, through increased organization and innovative alliances, models, like other artists before them, can compel change by partnering with – instead of against—the industry.  Third, encouraging model entrepreneurship will afford models the opportunities for which they are otherwise agency beholden. Finally, heeding the success of Proposition 22, whereby California voters approved tech-based transportation and delivery companies’ hybrid business model, which effectively modified AB 5’s application to their industry, models should consider the political initiative process to affect similar change.

You can download the full version of Betina’s post here.

After graduating magna cum laude from UCLA and Loyola Law School, Betina Baumgarten practiced civil defense litigation for over 15 years, while both starting and raising a family; and putting her husband through medical school.  With a desire to try her hand at entrepreneurship, she heeded her keen fashion eye in starting Best Foot Forward by Betina, a personal styling and branding business, where she taught the modern woman how to dress for their bodies, and authentically. Her work as a stylist also afforded her the opportunity to dress three Oscar nominated directors and producers, one of whom won the Oscar for Best Picture in 2016.  The onset of Covid coincided with a desire to work on the business side of fashion and afforded her the opportunity to apply and be accepted to Fordham’s Fashion Law Institute with an LLM in Fashion Law, where she was a merit scholarship recipient and just completed her first year of coursework. With an interest in fashion sustainability, she also works as Of Counsel for TheRealReal.  DISCLAIMER:  The ideas and expressions in this piece are mine alone, and not those of The RealReal.