Photographer Sues The New York Times for Age Discrimination, Wage Loss and Misclassification of Employment

A “full-time freelancer” is the same as a staffer, just without the benefits, plaintiff argues

A lawsuit brought by veteran New York Times photographer Robert Stolarik — whose images appeared on the gray lady’s front page more than 30 times — paints the picture of the gig economy issues confronting aging freelancers in the media and a newsroom challenged with diversity.

(Full text of this complaint can be found here)

The 23-page suit, filed on July 6 and first reported by Law360 and Bloomberg Law, alleges misclassification of employment, wage loss, and age discrimination. The complaint raises concerns about equity for aging freelance photographers and other journalists in the gig economy.

Stolarik, 48, first began working for The New York Times in 2000, while covering the conflict in Colombia. Beginning in 2002, he worked almost exclusively for the paper’s Metro and National desks, covering politics and breaking news. From Hurricane Katrina and Sandy to presidential elections, Stolarik was frequently assigned to cover major news events.

Several elements make this case unique under the Fair Labor Standards Act and the New York State Labor Standards, starting with the fact that Stolarik worked for the Times for nearly 14 years, says Lee Bantle, an attorney who represents Stolarik.

According to the complaint, the Times has called Stolarik a “full-time freelancer.” Bantle points to an email sent by a picture editor to a New York Police Department spokesperson requesting a renewal of Stolarik’s police-issued press credential. In the email, the editor refers to Stolarik as a “full-time freelancer” working for the Times. The term permalancing, derived from permanent and freelancing, is more commonly used, Bantle argues that under the Fair Labor Standards Act, there is no such category, and suggests such employment classification will be found unlawful. An employee is either a full-time or a freelancer.

Linda Zebian, a Times spokeswoman, did not say whether the paper employs other “full-time freelancers.” Instead in an email, Zebian provided the following statement: “We are confident the claims are unfounded and intend to vigorously defend the case.”

Stolarik’s dedication to his profession and the paper was evident both in his photography and the lengths he was willing to go to make pictures. In 2012, while working in the Bronx, he was arrested by the police during an assignment. A horrifying video shows several officers jumping him during the violent ordeal. The charges were later dropped, and the arresting officer was convicted of falsifying police records to justify the arrest. In his lawsuit, Stolarik acknowledges that the Times covered his legal and medical expenses and loaned him cameras when his gear was confiscated by police during similar incidents. However, he was never provided health insurance or other benefits that staffers are entitled to.

The lawsuit alleges wage loss and age discrimination. The complaint notes that four young photographers were chosen over Stolarik for staff positions, all while Stolarik continued to freelance and express a strong interest in full-time employment. It also alleges that Stolarik was not paid overtime when worked over his daily eight-hour shift.

Times Director of Photography Michele McNally is also named as a defendant in the suit, which was filed in the United States District Court for the Southern District of New York.

According to the legal complaint in emails from one editor to Stolarik he was asked “How old are you? Under 30?” In multiple conversations with another editor, he was told “too old” to be considered for a staff position.

Stolarik’s allegation of age bias may not be the paper’s only issue. According to a study done by Women Photograph a database of independent women documentary photographers, supported by Pulitzer Center on Crisis Reporting and World Press Photo among others, the Times lags behind in its representation of female photojournalists. Based on their research only 9.7 percent of images on the paper’s front page were shot by women during the first quarter of 2017. In fact the data shows that this percentage was the lowest among other major publications (the Guardian, 13.2 percent, Los Angeles Times, 24.4 percent, and Washington Post, 25 percent).

American Society of News Editors, a nonprofit professional organization that promotes journalism practices, generates an annual census on newsrooms diversity based on data collected from participating organizations. Their 2016 survey indicates that 78.2 percentage of the Times employees are white. Aside from the age of new staff photographers hired during Stolarik’s tenure, three of the four are male and all are Caucasians. Two other high profile hires by the photo department during the same period, were also white males.

In recent years the paper has offered several rounds of buyout packages, shedding many of its older newsroom employees as a cost cutting measure. Poytner reported that the last round of buyouts in June of 2017, included long time photo editors and photographers with decades of experience.

However Stolarik’s allegations are settled in court, there is an indication in lack of diversity at the Times. “The numbers seem to be moving in the right direction, but the pace of diversity needs to quicken to catch up with the population,” said American Society of News Editors president Pam Fine, commenting on their 2016 newsroom diversity data.

For freelance photographers life remains challenging. More news outlets are leaning on freelancers at the same time the proliferation of digital photography has led to severe drops in rates. Meantime, healthcare and other living expense continue to soar.

In theory, freelancing allows photographers, journalists, and filmmakers to be free of a 9-to-5 routine to pursue personal projects. This was not the case for Stolarik. According to his lawsuit, Stolarik booked significant number of days and hours on assignment and was never paid for sick leave, holidays, or vacation days.

As individual freelancers age, a lack of steady income, healthcare, and retirement accounts become serious and sometime life-threatening concerns. Gig economy workers and freelancers tend to be poorer than staffers, a survey by Pew Research Center found last year. Additionally the prestige of having a staff position specifically one with The New York Times, tends to open doors that are frustratingly not always open or even accessible to freelancers.

Melissa Lyttle, president of the National Press Photographers Association, says many news organizations are relying more on independent contractors than staffers. “We continue to see contracts that relinquish substantial rights to the work for not much more compensation than independent contractors were making 20 years ago,” she said.

Lyttle says freelancers need to be treated in the same spirit as staffers: “It is crucial that our members who are both on staff and working as independent visual journalists be treated fairly.”

The New York Times itself has published several articles on the pitfalls of gig economy. In an opinion-page article by Sara Horowitz, Freelancers Union founder and executive director, writes, “…while it’s clear that misclassified work is a serious problem that warrants punishment for bad actors, treating freelancers as employees will not solve all of our problems.”

Stolarik’s case gets to the heart of this very statement. Was he a freelancer or a misclassified employee? A judge will decide, likely in the coming year.