Why Can't Publishers Make Writers Behave?

Recent events have made it clear that many people do not understand the relationship between companies and freelance contractors generally, and publishers and novelists (or other contracted writers) specifically. Publishers, and other bosses, often seek to control the public utterances of their employees. They have much less power to do so over their freelancers.

Freelancers, including novelists, are quite vulnerable in many ways. No pensions, no unemployment insurance, none of the usual labor protections enjoyed by employees, and no corporation to pay a share of FICA taxes. This why the old trick of firing workers and then bringing them back as freelancers is profitable—there's a whole raft of expenses beyond the salary that freelancers don't get.

On the other hand, a company can run into problems if it fires workers and rehires them as freelancers to do their same exact old jobs. The IRS checks to see if freelancers, especially long-term freelancers, or freelancers who seem to only contract with one firm, or freelancers who make a lot of money, are actually misclassified employees.

To avoid getting hammered, there are rules companies follow when interacting with their freelancers. Companies:

1. try to keep freelancers from using company office space or resources
2. try to avoid hiring freelancers to do exactly the tasks that are part of an employee's job description
3. try to keep from closely managing freelancers, outside of the basics of benchmarks, deadlines, and broad descriptions of receivables
4. try to keep freelancers tasked to particular projects or programs rather than utilizing their labor in an open-ended way

And they don't treat freelancers like employees when it comes to public utterances, or social media, or anything like that. Of course, this isn't to say that companies don't make decisions based on a freelancer's public utterances or social media usage—of course they do. They just don't act as though they do.

A freelancer isn't owed a reason as to why the work orders have stopped coming in, after all. A novelist doesn't get to know why a book was rejected, or a new contract not offered.


While firing a worker and rehiring him or her as a freelancer is a good way to experience from scrutiny from the feds (Department of Labor especially), it is also the case that companies can misclassify employees as freelancers without any history of formal employment. It happens in the start-up world not infrequently.

Would novelists possibly cross the line into being actual employees of the publisher? It's easy enough to imagine writers with long-term relationships with a single publisher, who work according to a fairly rigid schedule (one-three books a year, with mandatory outlines or pitches), who draw most of their income from this one publisher, who perform publicity functions on behalf of his or her books and thus the publisher, etc. But it is doubtful that the DoL would twig that the novelist is an employee...unless the publisher went too far.

What's going too far? Telling the novelist what to blog about, attempting to limit his or her political activities or expression of opinions on the issues of the day or even the quality of other books put out by the publisher, and other "workplace" things.

What recourse does a novelist have? Wouldn't our nasty nasty writer, if he or she were to get a phone call or an angry email or an "open letter" from a publisher saying, "Stop blogging about wanting to kick tiny children in the shins till they cry* or we'll cancel your contract!" have to straighten up and fly right and behave and say only nice things to the "customers."

No. Of course the novelist has some recourse, especially if he or she has had a long-term relationship with the publisher, draws a lot of his or her income from that publisher, and has a history of receiving directives from the publisher about his or her behavior. That recourse: file for unemployment compensation, and let the DOL figure out whether he or she deserves some checks or not, and let the IRS figure out if it deserves some checks or not.

Push too far, too hard, too often, and a publisher may just find its headcount is much larger than it believed. And even if not, the publisher still gets to experience the annoyance and hassle of an investigation. If a publisher wants to play the game of "You'll never eat lunch in this town again!" in public or even in writing, that could lead to the freelancer, do-this-or-you-are-fired email in hand, giving the unemployment-filing trick a whirl.

This is one reason why all those tweets and emails and blog-comment huffing about a publisher doing something or at least saying something about that nasty, awful person whose books they publish are almost never going to get any kind of public hey-there-this-is-evidence response from a publisher.

There are other reasons too—awful people, up to and including criminals and the more blood-soaked breed of politician, write books all the time. There's a massive tradition of carceral literature in existence. If you've attended college, you almost certainly read the writing of some criminals, or even material that was written inside prisons. Don't think that awful blog posts or sneakity-doo trickery on the Internet will faze many publishers. Think of James Frey, who lied to millions of people, who had to settle a lawsuit because his memoir was wall-to-wall lies, and who was yelled at by Oprah (patron saint of nice people) on her show. Where did he end up? At the head of his own YA fiction sweatshop, and getting movies made from "his" stuff.

Publishing just ain't about "nice" when it comes to its writers, and that is true in both how it treats writers, and what it can expect from writers.




*An entirely hypothetical example of a legitimately horrible subject for blogging.