Testing Versus Homework

Superficially, hiring homework appears to be cut from the same cloth as proficiency tests; the stated goal of both is to gauge the skills of the candidate. Proficiency testing is common, particularly among creative agencies which place professionals as contract workers. What makes proficiency tests distinct is that the tests are uniform, limited in scope and time commitment, focus only on relevant skills and problem-solving, and do not result in the creation of original work. Since the testing is uniform, the agency can evaluate skills from candidate to candidate.

Even then, proficiency testing can be abusive. This is particularly the case in the animation industry, where studios want to be reassured that the animation artist is a good fit stylistically and in skill set. However, as the Animation Guild, IATSE Local 839, points out, excessive, abusive tests are rampant in the industry. The Animation Guild advises animators on how to suggest alternatives to a test, and how to gauge if a test is abusive. They also provide guidelines for studios on how to assess an animator without testing, or create an effective test without being abusive.

Bad for Artists, Bad for Clients

In her article “Assignments for Hire”, Goulet unearthed additional grave concerns with hiring homework. The first is that hiring homework may not even be legal under the Fair Labor Standards act. Goulet interviewed labor attorney Mark Hanna for her article. He pointed out that while the companies utilizing hiring homework may assume that the candidates are contract workers, when in fact, that may be a misclassification. If so, the hiring companies would be in breach of labor laws concerning wages and hours.

The second issue with hiring homework is the intellectual property rights to the work created. When a firm uses the original work created by a designer or illustrator in their deliverables to the client, they’ve infringed the artist’s copyright. They’ve exposed their client to a potential infringement lawsuit.

Additionally, a client who realizes that the work of an unhired artist was incorporated into the deliverables they paid in good faith for would justifiably feel that their project was handled unprofessionally. Under hiring homework conditions, the unhired artist hasn’t been part of the creative briefing, is working on a rushed timeline without guidance and supervision from a creative director, and hasn’t agreed to a proper transfer of the rights to their work. This is hardly what a client expects from a creative agency.

It’s Not Just Newbies

Goulet became aware of hiring homework when a number of design students she mentors asked her how they should handle these requests. However, hiring homework is becoming commonplace, and experienced designers from around the globe are being asked to complete it. Recently we’ve heard from designers in South America and Southeast Asia that they are routinely asked to complete assignments as part of the interview process. It’s also becoming normalized in a number of industries, from website backend to communications to event planning and public relations.

We took an informal poll of Guild leadership on whether they’d encountered hiring homework. A number had, including established designers with a public body of work and a long-standing reputation. Here are a couple of stories:

One designer shared that he’s been asked to complete hiring homework “more times than I can count” when he was starting his career and even now. The most disturbing request occurred last summer, at the height of the pandemic. A large communications firm in D.C. that works with political campaigns contacted him after hours with a very specific request: to create collateral (a lawn sign, a web banner, and a direct mail piece) for each of three candidates. They expected original concepts and designs for a total of nine works to be created overnight. Not only did they expect completed designs, they also requested the layered Photoshop files, claiming they needed to see how he built his layers.

When the designer, astounded at the request, contacted them to ask if the work would be paid, the firm dismissed him. Their response was that “this is a test, and in this business, you have to be responsive.” The designer feels quite strongly that the firm is using hiring tests to get free labor. Having the editable layered files meant that they would be able to easily build additional collateral without needing to pay an outside designer. He later researched the company and discovered (no surprise here) that they were panned by freelancers who had been repeatedly taken advantage of by the company.

Another established designer reported that he was approached by a senior designer for a small marketing firm. The firm was trying to poach him away from his regular gig of eight years. The firm convinced the hiring manager to give the designer a “hiring test” as part of the interview process. When the designer flat-out refused to do the hiring homework, the manager responded that the firm asked that of all candidates; it wouldn’t be “fair” to let him slip by without a test.

The designer finally agreed to do three small assignments, and the firm agreed to pay him (albeit half of his usual rate). The designer doesn’t believe the assignments were ever used for a client project and didn’t negotiate a rights transfer on the work.  As it turned out, the designer didn’t get the gig. He’s sworn not to do hiring homework again.

Hiring Homework and “Work Made for Hire”

Paying designers a small fee to complete hiring homework isn’t unheard of. Even then, the amounts offered or the conditions under which the designers would be paid can be insulting. One of the designers Goulet cites in her article was offered a small stipend if the hiring company “liked the work” – otherwise they told her she could put the work in her portfolio (as if she needed their permission). We have yet to hear of one these arrangements including some discussion of a transfer of rights to the work.

Companies sometimes dodge any discussion of a transfer of copyrights by claiming that the submitted assignments are “work made for hire.”  This happened to one of our board members early in his career. He completed the hiring homework assignments for a fee of $250 and the understanding that the hiring company would use his designs. He never thought to raise the issue of a copyrights transfer because the company told him his work was “work made for hire. As a new designer, he didn’t know to challenge that.

When a creative project is made as “work made for hire,” the copyrights to the work belong to the company or client for whom the work was made as if they were the creator. It’s crucial to understand that work made for hire is different from an all rights transfer. In work made for hire, the designer or illustrator has no rights to the work at all, as if they were never the creator of the work. However, it isn’t enough for a company to claim that a work is a work made for hire. To qualify as work made for hire, a work has to be created by an employee within the scope of their job, or it has to fit into one of nine categories: a contribution to a collective work, part of a motion picture, or audiovisual work, a translation, a supplementary work, a compilation, instructional text, a test, answer material for a test, or an atlas. (See the Copyright Office’s circular “Works Made for Hire” for a detailed description.)

Additionally, for a work to be considered a work made for hire, both parties ­– the creator and the company or entity soliciting the work ­– must agree to the designation. That means for a work to be considered a work made for hire, it must either be completed by an employee within the scope of their job, or meet fit into one of the nine categories. Both the creator and the hiring entity must “expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” (Copyright Office circular, Works Made for Hire. Emphasis ours).

They’re Having Our Cake and Eating It Too

What is becoming clear from the creators’ experiences dealing with hiring homework is that companies are trying to have it both ways. By making the interview process conditional on hiring homework, they’re soliciting free labor from designers they have not committed to hiring. However, by framing that work as “work made for hire,” they’re treating that work as if the designer were an employee. They win both ways, and the designer loses.

So what can designers and illustrators do about this? The best recourse for designers and illustrators is to refuse to complete hiring homework assignments. That puts the entire burden of correcting a bad practice onto creative professionals competing in a lean market. Goulet has a number of ideas that channel the collective power of the design industry, from educating designers, to demanding payment, to developing ethical codes. She’s put her finger on it. We’re at a time when, from misleading contract terms to invoice skimming to hiring homework, creative professionals are facing daunting challenges to their ability to simply earn a living. Perhaps the only way to counter these unfair labor practices is to have creative professionals across industries – writers, photographers, illustrators, designers, videographers, etc. – say “enough.”