At age 42, yoga teacher Briohny Smyth is more flexible than most twentysomethings, posting instructional videos contorting herself into one-legged crows and complicated handstands for her 345,000 Instagram followers.
For over seven years, she created workout classes for Alo Yoga’s social media and subscription-based Alo Moves app, where she was one of the top-ranked instructors, appeared at the brand’s events and wore its signature matching workout sets in her social content.
But Smyth claims that Alo began to cut her compensation after she turned 41, despite what she described as high viewership for her videos on the brand’s YouTube channel and fitness app. In February, her contract ended.
In a lawsuit filed in Los Angeles County Superior Court on Monday, Smyth alleges she was let go because of her age.
“She remained capable of performing at the same high level as she had when she started working for Alo Yoga years before,” the complaint said. “What Smyth could not do however was fit within the increasingly mandated ‘Alo aesthetic.’”
“The allegations in this lawsuit are without merit, and Alo intends to vigorously defend itself,” said a spokesperson for Alo.
By suing for age discrimination, Smyth is wading into the legal gray area that governs how influencers are treated when they work with a brand. The vast majority, whether they’re creators with a few hundred followers who receive free leggings to A-list celebrities with multi-million-dollar ambassadorship deals, are considered freelancers, with fewer protections than full-time employees under US law.
As part of her lawsuit, Smyth claims that for the last seven years, she was, in fact, an Alo employee, and therefore entitled to the same protections as a sales associate in one of the brand’s stores, or an executive in its Beverly Hills headquarters.
Smyth joins other workers in the fashion ecosystem, including models and stylists, who are advocating for more protections and better treatment. The industry relies heavily on a gig economy, where talent is brought in on a project-by-project basis as independent contractors. This lone-wolf status makes it harder to protest poor working conditions and advocate for better pay and benefits.
Advocacy groups like the Model Alliance work on behalf of their professions, and have scored some successes, including a law passed in New York earlier this year that offers new protection to models against unfair contract terms and abuse on the job.
Influencers have begun to advocate for change as well through the American Influencer Council, a trade group. The entertainment union SAG-AFTRA in April created an influencer committee as it looks to represent more digital creators.
“It’s changing as we speak. It’s just a new and evolving space,” said Daniella Crivello, an influencer-focused entertainment lawyer, of the state of influencer contracts.
Cultivating a Certain Look
Frequently sported by celebrities such as Hailey Bieber and Kendall Jenner, 18-year-old Alo has risen as a formidable challenger to Lululemon in the world of chic-but-not-crunchy yogawear. Beyond household names, it has tapped into a vast network of influencers and fitness instructors to promote its sports bras, logo caps and $128 leggings.
As with many fashion labels, those influencers reflect a clear brand aesthetic, which the lawsuit contends includes age. Like its A-lister campaigns, Alo influencers and fitness instructors featured in content are often in supermodel-level shape and beautiful.
Smyth became part of this universe in 2018, when Alo acquired CodyApp, a yoga instruction app where she was teaching in pre-recorded videos. Teaching yoga was a second act for Smyth, who was raised in Los Angeles but became a pop star in Thailand after moving there as a teenager.
CodyApp was rebranded to Alo Moves, and Smyth became an Alo ambassador. While she continued to teach and post videos on the app, the brand also featured her in marketing content, including a 2018 YouTube video and blog interview on the brand’s site featuring her life story. She received a $100,000 annual contract, bonuses and free clothing.
Her early videos were wildly popular on Alo Moves. Even today, when yoga videos are sorted by “most popular” on the app, three of the top four are Smyth’s. She also ranks in the top six instructors across workout categories, and her classes have 8.4 million views combined on Alo’s YouTube channel.
Most, if not all of the most viewed videos on both the app and YouTube are at least five years old, however, though the app is still regularly updated with classes and other content. On YouTube, while Alo still posts regularly, it has pivoted away from instructional yoga and workout demonstrations, filling its feed with clips from marketing campaigns and its higher-profile celebrity ambassadors. One recent video shows Kendall Jenner riding a horse.
Smyth’s complaint states that in 2023, after turning 41, Alo initially cut her annual compensation to $50,000, which was negotiated up to $70,000. Her bonus structure was cut in half, and her clothing allotment was reduced. In February of this year, her contract ended. The court document states Alo told her the app was “now fully under the umbrella of Alo Yoga” and it was “focusing on different things.”
The complaint alleges that “different things” is a veiled reference to Smyth’s age. It claims an Alo employee told Smyth in 2019 that “we never branch out to people like you,” which she also interpreted as referring to her age. The lawsuit alleges that she was offered “five times less than her standard day rate” for photo shoots, while younger instructors were offered more and featured in more Alo content.
“We believe that it is not an isolated incident, and that there were others who suffered this, and that it is a pattern of practice,” said Smyth’s lawyer Keith Wesley, in an interview.
Defining Who Is an Employee
To succeed with her lawsuit, Smyth will need to convince the court that she was illegally classified as an independent contractor.
While fashion labels tend to have free reign with who they hire for individual shoots, Smyth contends that she was a full-time employee of Alo and subject to protections against employer age discrimination.
“Just because a company says that you’re an independent contractor, that doesn’t mean you necessarily really are,” said Wesley.
That may be easier to prove in California than most other US jurisdictions.
In 2019, California’s governor signed into law Assembly Bill 5, which set stricter guidelines on which workers could be classified as private contractors. Private contractors, the law states, must be free from control of the company in how they perform their work, be doing a job outside the usual scope of the company’s business and customarily engaged in the same trade as the work performed.
While it was concern for “gig economy” workers at companies like Uber that drove the law’s passage, it potentially has far-reaching effects on other industries. Some instructors at fitness studios have used the law to change their classification to employees.
Smyth is making the case that the same standard should apply to fitness instructors on apps like Alo Moves too.
The complaint argues that Alo had full creative control over her videos down to her clothes, hair and nails, and that she was required to attend planning calls for the shoots, as well as give the brand blanket permission to turn any of her social media content into ads.
Influencers’ copyright right to their content is usually a key component of the private contractor arrangement, Crivello said, meaning Alo’s ownership of Smyth’s workout app videos could support the stance that she was an employee. Peloton, for instance, classifies its instructors as full-time employees. Smyth also argues that her regular work over a period of years and exclusivity support her claim.
Those two aspects are untested in court and can be found in activewear deals with athletes large and small. Crivello generally dissuades her clients from exclusivity agreements before the contract is signed.
“As a lawyer, you try to change the contract to make it as broad as possible,” she said. “If they’re not even going to be covered for insurance and they’re not being paid enough, you at least need to give them more wiggle room to work with others.”
