Hot jobs + answers to your top legal questions

I’m very active on the freelance corners of social, and lately I’ve noticed A LOT of legal conversations happening. Questions about contracts, payment terms, late payments, scope of work, etc.

While I'm passionate about the topic, I’m no lawyer. But luckily my pal, Brionna Ned, is! This week, we’re giving her the floor so she can answer your top legal questions.

Keep scrolling for our thorough Q&A — followed by this week’s hottest jobs.

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Legal Q&A

Brionna Ned is the owner-operator of The Everyday Lawyer, the place where B2B service providers go to learn legalese. She specializes in teaching freelancers and consultants everything they need to know about contracting with companies, from how to manage risk and navigate power dynamics, to how to interpret contractual language and negotiate contracts with larger companies. She started her legal career as a litigator before she worked as in-house counsel at several start-ups. And now she teaches everyday business owners everything she learned as a corporate lawyer.

Let’s dive in!

Q. What are the must-includes in every freelance contract?

A. At a bare minimum, every contract needs to include how much you’ll be paid, when you’ll be paid, and what you’ll be paid for, also known as the services fee, the payment terms, and a description of the services. I also tell people that a must-include is terms for ending the contract if, for whatever reason, the working relationship goes south. The termination clause needs to include the different ways the contract can end and what happens in terms of payment and performance of services when a contract ends.

Q. How do you recommend freelancers handle and follow up on late payments?

A. There are two methods for handling late payments. One is available to everybody and one depends on where you live. For the method available to everyone, if you want to charge late payment fees, then you need to include a late payment fees clause in your contract. You also need to use an invoicing service that auto-calculates late fees and sends your client an updated invoice with the late fees included. Using an invoicing service that auto-calculates late fees makes that contract clause mean something.

The second method for handling late fees depends on where you live. If you’re in New York or Illinois, then you can remind your client that the state’s freelancer protection act applies to you and they are subject to penalties if they are late in paying you. The rule is the same if you live in LA, but the only difference is that your client also has to be based in LA for the law to apply to you. There are also freelance protection laws in the cities of Seattle and Minneapolis.

Q. Can a company tell a freelancer where and when they need to work?

A. Generally, a company cannot control the means or methods under which a freelancer performs their services. That is a key factor that most courts look at to determine whether a freelancer is an independent contractor or an employee. One thing a lot of freelancers I work with do is include a clause in the contract that says they are open to using a client’s systems for the scope of the project for the purposes of communication (example: Slack channel) or delivering work/receiving feedback (example: Google Docs). If you encounter a clause in a contract that says the client has the right to control when, where, and how you work, then remind them that if they want that control, then they need to pay you a salary and provide employee benefits. Usually, that gets them to remove the clause.

Q. How should every freelancer be protecting themselves from liability?

A. This is one of those “it depends” questions. And the thing it depends on is your personal risk tolerance, which is what informs your business’s risk profile. So instead of saying what you should be doing, I’ll share some options for minimizing potential liability. The first and most obvious is to form a legal entity for your business. I’ve yet to meet a freelancer who needed anything more than an LLC (as a reminder, an S-Corp is not a legal entity; it’s a tax election). An LLC helps protect your personal assets so long as you keep your business assets separate from your personal assets (separate business bank account and books, etc.).

Another option for limiting liability is business insurance, specifically an errors and omissions policy. Yet another option is to include a limitation of liability clause in your client contracts, which is a personal favorite method. All of these are great options. You can choose one of them, all of them, or none of them depending on your risk tolerance and your business’s risk profile.

Q. How can and should freelancers negotiate ownership of their work?

A. The thing most freelancers are concerned about is reserving the right to disclose the work they did for a client for marketing purposes. You can reserve that right in a clause in your contract and call it “Publicity Rights.” You can also include it in the Intellectual Property/Ownership section of your contract.

For the actual deliverables you create for your clients, the key consideration is whether you also have an audience that would buy the deliverable from you. In other words, do you and your client share potential customers? If so, then you want to give your client a right to use your content, but not own it, which is a license. If you and your client do not share potential customers, then a traditional work-for-hire clause where you grant your client the right to own the content you create for them is appropriate.

Q. When do you recommend freelancers get a lawyer involved?

A. There are a ton of scenarios where lawyers can be useful, but here are a few where I think lawyers can really make a difference for freelancers: (1) writing demand letters when a client hasn’t paid you and isn’t responding to your demands for payment. A demand letter on law firm letterhead can be extremely powerful; (2) reviewing contracts that feel like they are way over your head to give you some peace of mind and help ensure that you’re not agreeing to something potentially problematic for you; (3) helping you create a risk profile for your business and develop a strategy for managing risk.

A last note from Brionna:

If contracts make you uneasy, then chances are that you’re probably missing key information you need to interpret and negotiate them. And that key information is context or a frame of reference through which to make sense of your contract. If you need a frame of reference for interpreting contracts, then I invite you to check out my free workshop, “What No One Tells You About Contracts.”

Phew. Now that you’ve got all of this information in one place, make sure you save this email so you can come back to it.

And be a pal and forward this email to your freelance friends who likely have the same questions.

Before we leave you today, check out these hot new gigs:

Manifest is looking for a freelance senior copywriter for a 4-8 week project, starting around October 21. Pay is up to $100/hr.

Invisible North is on the hunt for a freelance graphic designer. Pay is up to $100/hr.

Omnicom Health Group is seeking a freelance medical writer. Pay is up to $130/hr.

Omnicon Health Group is also seeking a freelance project manager. Pay is up to $45hr.

RorZfilms is hiring a freelance Facebook and YouTube Ads expert. Pay isn’t listed, so pitch your rates!

Academian is hiring for a freelance digital accessibility expert. Pay is up to $24/hr.

Looking for new clients, but none of these feel like a fit? Visit the job board to see all of our open roles.

Cheers,

Samantha & Andrea