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What to do When you Haven’t Been Paid

Late payments are the bane of every illustrator’s existence. So what should you do if you have a delinquent client? Let’s examine the scenarios and tackle the remedies.

Firstly, it’s important to note that most issues of nonpayment aren’t due to maliciousness on the part of the client. They can range from things as simple as you neglecting to put the appropriate information on your invoice, the art director forgetting to submit it, or certain vendor forms not being filled out. Of course, there are also evil clients out there who will attempt to screw you, but they’re definitely not the norm. With all that in mind, here’s the strategy I’d suggest in helping to secure payment.

Double-check your records

The first thing you’ll want to do is double-check your records. Most companies will not pay without receiving an invoice. If you haven’t sent one yet, then that would definitely be why you haven’t been paid. If you have sent an invoice, double-check the payment terms in your contract or your email communications. You may have thought you agreed to being paid 30 days after receipt of art, only to discover that what you had signed said 60 days. If, after looking through your records, it still looks like the client is late in paying you, then you’ll have to contact them to figure out what the delay is.

Follow up

Once it appears your payment is truly late, you’ll want to follow up with a simple, friendly inquiry. Do this via email, not phone. The reason being, you’ll have a paper trail that you can refer back to should anything go wrong later down the road and you can also reattach your invoice.

When following up, keep it light and breezy. There’s no need to assume anything nefarious is going on and your tone should reflect that. I usually write something like:

Hi [Art Director’s Name],

How’s everything going? It was so great working with you on [describe project]. I’m actually writing because I haven’t been paid for it yet and it’s now overdue. I’ve attached the invoice for your reference. Do you know when I can expect to receive payment?

Best,

[Your Name]

Usually, the art director will check into the matter. If all goes well, they’ll promptly give you an answer as to why you haven’t been paid and alert you that your check will go out in the next mailing. Problem solved.

Second notice

If your client still hasn’t paid you after two more weeks (ten business days) from your inquiry, then it’s time to check in again. You should still remain fairly friendly and do a simple follow up, referring to—and quoting—your earlier conversation. You’ll probably receive a similar response as you did last time. All being well, this should resolve your issue.

Getting more serious

If your client still has not paid you two weeks after that, then it’s time to get more serious. There’s no need to be aggressive, but there’s certainly the need to take a tougher, more formal stance. I might even suggest seeing if you can talk to someone else in accounts payable directly if the art director is incapable of getting you paid in a timely manner. Something like this might suffice:

Hi [Art Director’s Name],

I’m inquiring again about my attached invoice dated [insert date]. Per our conversation two weeks ago I should have already been paid, but have yet to receive anything. Can you please let me know the status? I understand these things are beyond your control so if it makes more sense to talk to someone in accounts payable, can you give me their information and I’ll talk with them directly?

Thanks and best,

[Your Name]

Hopefully that third reminder should get you paid. Or at least give you an answer as to why you haven’t been and provide a date as to when you can expect it. You may even wish to call to discuss the issue, but, if you do, remember to send a follow-up email immediately afterward, quoting what you both discussed. That way you’ll both have it on record.

If two more weeks pass by, though, and you still have yet to be paid, then it’s time to up your game.

Late fees

At this stage, I’d suggest incorporating late fees into your outstanding invoice, dating back to when it was first due. Per your contract, you’ll probably have negotiated a 1.5 – 2% compounded late fee. So, if your January invoice is $1,000 and it’s now May (3 months late), your new fee is around $1060. And it will keep growing by 1.5–2% (whatever you previously negotiated) every month.

So, follow up with another email. This time send a revised invoice showing the late fees and be sure to highlight those additional fees in the email. All being well, this should, hopefully, motivate the client to get off his or her butt to pay you.

If a couple more weeks go by and you still haven’t received anything, then warning bells should definitely be sounding. Now you’re in some bad territory.

Final notice

At this point, it’s safe to say that something nefarious is going on here. You’ve made reasonable efforts to get paid and the client’s had plenty of time to address the situation. It could be the client is having financial issues, cash flow problems, or just plain wants to get something for free. In either case, this is far past kosher. It’s time to submit a final notice with some stern wording.

So, with that, I’d recommend submitting your invoice one more time with the most current late fees and instruct your client that, if payment isn’t received within three days, you’ll be pursuing legal options. It’s best not to get specific about what, exactly, you will be doing. Let them wonder about it. But do let them know that you’ll be elevating the situation.

It’s also worth noting that, by the time you’ve reached this stage of nonpayment, your client will most likely go dark, ignoring all your emails and phone calls. It will be like sending messages into a void. That’s OK. You still have plenty of recourse available to you. So just go ahead and send the final notice. If they don’t pay within three days, then we’ll discuss your legal options.

Legal options

So, sadly, you’ve stumbled upon a deadbeat client now. While this isn’t the norm, these things do happen from time to time. Don’t fret, you’ve got some options:

Small Claims Court

Your best option is to sue them in small claims court. Small claims court is awesome. It’s cheap, easy to sue practically anyone, and you don’t need a lawyer. Every state is a bit different, but in New York, you can sue for up to $5,000 for a $20 filing fee. All you need to know is the correct business name of the client (sometimes they work under DBAs instead of their actual business name). For that, you can usually look at any previous pay stubs you’ve received from the client or check the County Clerk’s office in the county where the business is located in. The court will give you a date for the hearing and notify the client. All that’s left is to gather evidence (all those email correspondences, your contract, etc.) and knock ’em dead at trial.

Mediation/Arbitration or Civil Court

If your claim is larger than $5,000 you’ll have to take your client to some kind of mediation/arbitration or Civil Court. This is a much more complicated procedure and, for that, I would recommend a lawyer. I won’t get into details with this too much since it’s not something you can do as easily on your own, but will advise on hiring a good lawyer to help.

Collection agencies

You could also consider turning over your debt to a collection agency to collect on. For a fee (generally anywhere from 10 to 50%), a collection agency will hound your client to produce payment. Before involving a collection agency, though, make sure you understand fully the tactics they’ll use, as they may reflect unfavorably on you if they’re not professional.

Once you’ve successfully won your case using your legal options, your client will be forced to pay up. But, unfortunately, even at that stage they might not. So what do you do if they still won’t cough up your money?

Involving the law

Sadly, even though you can win a court judgment against a delinquent client, they may still choose to ignore it. At this point, you’ll now need to get the law involved. You’ll have to contact your local sheriff or marshal to assist with collecting the judgment from the client. They can do this in a number of fun ways—garnishing of the client’s salary, seizing of the client’s property, taking over their bank accounts—but it should get you what you want. This may be time consuming, but the law often is. Go with it and you’ll eventually get what’s owed to you!

One additional note

It sucks to have to hound clients who pay late. However, always be professional. No matter how bad the situation gets, don’t make it personal. Don’t beg, tell sob stories, threaten, yell, or cry. This is just business so remove your emotions from the situation. If you find you’re really upset, wait a day or two to send that email when you have a clear head. Always remain civil and matter-of-fact. It’s the only way to ensure you get what you want.

Final thoughts

There’s no way around it—payment issues will happen in your career. However, I do want to stress again that most are innocuous and can be handled with a couple of polite emails. Rarely do they need to go further. For those that do escalate into more nefarious situations, though, know that you have some recourse. If you’ve done all your work ahead of time by having a contract, completing the work as agreed upon, and keeping track of all your correspondences, any further action will be an eventual slam dunk. You will get your money. It’s just a matter of time, aggravation, and patience.

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Neil Swaab is a freelance illustrator, art director, author, and educator based in Brooklyn, NY. He's an instructor at Parsons the New School for Design and the illustrator of the New York Times bestselling book Middle School: My Brother is a Big, Fat Liar by James Patterson and Lisa Papademetriou. His new authored and illustrated book, The Secrets to Ruling School: Class Election, comes out this September from Amulet Books.

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