In September, 2017, LVMH and Kering jointly adopted “The Charter on the Working Relations with Fashion Models and Their Well-Being.” It was created following consultation with key external players, such as casting directors, stylists, models and modeling agencies. Intended to help improve working conditions for models, the charter seeks to apply standards of conduct to the signatory companies and to their external contractors, such as modeling agencies, worldwide. A monitoring committee will meet with brands regularly to assess compliance.Key provisions of the charter require compliance with the following:
- Cast only female models for adult clothing who are at least French size 34 (US size 2) and only male models who are at least French size 44 (US size 34).
- Require a valid medical certificate from each model, attesting to good health and ability to work.
- Have a dedicated psychologist or therapist at the models’ disposal during work hours.
- On the sometimes-difficult topic of nudity and semi-nudity, the charter is refreshingly frank: it will be allowed only with written consent of the model and parent/legal representative if under the age of eighteen. For all, there must be comfortable room temperatures and private changing zone, and the model may not be left alone with the photographer or other person connected with the production.
- No hiring of models under the age of sixteen for photoshoots or shows in which the model would be called upon to represent an adult and, for those models aged sixteen to eighteen, a restriction of work hours to 6:00 a.m. to 10:00 p.m.
- Provide food and drinks that comply with the models’ dietary needs. Alcohol is not permitted, with limited exceptions.
- Establishment of a grievance system (such as a hotline). Brands have the right to make unannounced inspections.
As leading multi-brand companies based in the world’s fashion capital, LVMH and Kering are positioned to make a global industry-wide impact with the charter. By extending enforcement by their brands to external contractors (such as modeling agencies) the companies are using their collective power potentially to cause change throughout the fashion business. LVMH and Kering have invited other brands to sign the charter. Antoine Arnault, a member of the LVMH board of directors and the CEO of its Berluti men’s footwear brand, has expressed his belief that, “[other brands] will have to comply because models will not accept being treated certain ways by [some] brands and another way with others.”
Within less than a year following the announcement of its adoption, the charter is bringing change throughout the fashion business by, in part, influencing others in the field to adopt similar measures to promote improved working conditions for models. ELLE and Version Fémina magazines signed onto the charter. Condé Nast and Tapestry Inc. – the parent company of Coach and Kate Spade – each released their own standards of conduct for models, and Elite Models is expected soon to follow.
Katie Grand, editor-in-chief of Love magazine, expressed to Women’s Wear Daily that learning about the LVMH/Kering Charter made her “mindful that models need to change in private.”
In February of this year, LVMH and Kering Group further demonstrated their commitment to the charter by launching www.wecareformodels.com, a website that is intended to provide models with access to advice from expert nutritionists, psychologists, and other professionals in the fields of mental and physical health.
Previously, the Council of Fashion Designers of America had implemented health initiatives and guidelines to promote wellness and healthier working environments for models. The initiatives were not about policing brands but were intended to raise awareness and promote education. The LVMH/Kering charter differs in that the companies have implemented the policy and are self-monitoring. But it is more: the charter does not function merely as a set of corporate guidelines but as rules of conduct for all participants in corporate projects in which models are involved. The founders of the charter have stated clearly that, if any external partner should fail to comply with the charter, they will sever their relationship with it.
Although the charter is not legislation, it is important to recognize that its medical certification requirement is in line with the EU labor laws for fashion models that were implemented in October 2017, only a month after the adoption of the charter. The charter’s age-specific rules for models under age 16 are in accordance with New York child performer laws that require special considerations for underage models, including restricted working hours, mandatory breaks, and school attendance obligations. In short, the charter is current on where the law has been headed internationally, and it is quite possible that showing compliance with the charter could have bearing on judicial thinking, particularly on questions of liability and in any potential damages awards, in future actions concerning treatment of models.
Will the charter create a new norm for the modeling industry? The fashion business has shown that, while styles change quickly, patterns of behavior generally change far more slowly; but for models, some change appears to be coming at last.
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 Osman Ahmed, A New Charter Aims to End Model Abuse: Will it Work?, The Business of Fashion (Sept. 7, 2017), https://www.businessoffashion.com/articles/intelligence/lvmh-kering-model-charter-will-it-work.
 Rosemary Feitelberg & Lisa Lockwood, Next Steps: How to Cure Fashion’s Model Scandal, Women’s Wear Daily (Mar. 26, 2018), http://wwd.com/fashion-news/fashion-features/fashion-reaction-french-law-skinny-models-10302035/.
 Nora Crotty, New York Signs Law Protecting Child Models’ Labor Rights, Fashionista (June 27, 2018), https://fashionista.com/2013/10/new-york-signs-law-protecting-child-models-labor-rights.
Credit: Gloria Kim
Gloria Kim begins her third year at the Fordham University School of Law in the fall of 2018. Gloria has worked at Ralph Lauren as a wholesale planner and at Louis Vuitton as a legal intern. She is an active participant in the school’s Fashion Law Institute and earned her Bachelor of Arts degree from the University of Virginia.
Did you hear the one about the man and woman who walk into a bar and say they interned for a luxury fashion company, a magazine conglomerate, a movie studio, a modeling agency, a jewelry designer or the Los Angeles Clippers and say they should have been paid for it?
It’s not a joke. The legal assault on the unpaid internship continues to pose serious issues for unwary employers. More and more unpaid interns (typically, but not always, students or recent graduates) and their attorneys are rejecting the age-old rite of passage/symbiotic relationship that requires them to work long hours and perform varied tasks without pay in exchange for the opportunity to learn the business, make meaningful contacts, pad a short resume and demonstrate the moxie to make big money from future paid employment. Interns and former interns who never before (outwardly) complained about their arrangements are finding clear support from federal and state wage and hour laws requiring payment of minimum wage and applicable overtime premium pay for all the hours they work—just like regular employees—and are filing and participating in lawsuits to get what they believe they are owed. The public interest website ProPublica compiled and updates a chart tracking filing and status of interns’ lawsuits (http://goo.gl/jBYR9U).
I Don’t Want to Pay My Interns…
Okay, and you don’t have to—if your unpaid internship program satisfies all six of the following factors:
- the internship, even though it may include the actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;
- the internship experience is for the benefit of the intern;
- the intern does not displace regular employees and works under close supervision of existing staff;
- the employer that provides the training derives no immediate advantage from the activities of the intern—and indeed, on occasion, its operations may actually be impeded;
- the intern is not necessarily entitled to a job at the conclusion of the internship; and
- the employer and the intern understand in advance that the intern will not be entitled to wages for the time spent during the internship.
If that does not sound like the program in place for your summer (or other) unpaid interns, you should carefully re-evaluate whether you are in compliance with the federal Fair Labor Standards Act and applicable state law. The test creates a very high threshold, but not an impossible one—for example, it may be satisfied where, among other things, an intern receives educational credit for an internship program that extends a classroom educational experience for her or his benefit to provide experience and training in a company setting. However, employers most often fail the test where an intern does work generally performed by paid employees, is left to work independently or does productive work for the company’s benefit (even if it also benefits the intern). In all of those cases, the intern likely will be entitled to payment for his or her services.
I’m Not Going to Pay My Interns…
Okay, but be aware of the potential consequences for misclassifying someone as an unpaid intern, which include all the back wages owed (including overtime for hours worked in excess of forty in a workweek) for three years (under federal law) or more (under some state laws), penalties of 100% or more of the unpaid wages and the obligation of paying not only your own legal fees, but those of the intern who sued you. Additionally, understand that many of these cases are brought as class or collective actions on behalf of other similarly situated interns. When you add to the mix the fact that companies rarely keep accurate working time records for those interns they elect not to pay, it all makes for a potentially very expensive proposition—particularly when weighed against the option of simply paying minimum wages in return for work performed. Given the wealth of resources and advocates for unpaid interns, the time has come for employers to toss out the “that’s the way it has always been around here” mentality and carefully re-evaluate their unpaid internship programs.
Credit: Marc B. Zimmerman
Marc is a partner in Phillips Nizer’s Labor & Employment Law Practice and Litigation Department.