FREELANCERS BACK IN THE SPOTLIGHT IN NEW YORK CITY
PROTECTIONS FROM DISCRIMINATION UNDER NYCHRL
As of January 11, 2020 in New York City, independent contractors and/or freelancers are protected from employment discrimination to the same extent as employees. Before this amendment to the New York City Human Rights Law that extends such coverage to freelancers, New York City employers could use (and sometimes abuse) non-employee workers with near impunity. Not the case anymore. Any employer who makes use of 4 or more freelancers who reside in the New York City area now must think of such as employees. If you are an employer who makes use of 4 or more New York City freelancers (a “covered employer”), you will want to implement an “on boarding” process for them similar to that used for employees to ensure that the freelance workers have proper training with respect to sexual harassment (such training of freelancers is, in fact, mandated by current law in most instances) and are apprised of any available complaint mechanism regarding discrimination should they experience it. If an employer does not apprise freelancers of a complaint mechanism and they are harassed by employees in a manner that is discriminatory, then the employer may not have a defense in those instances where the freelancer fails to invoke the complaint system (which would otherwise be an affirmative defense).
In addition to having to ensure a “workplace” free of discrimination for freelancers, the NYCHRL now also makes clear that a “covered employer” will be responsible for the actions of freelancers, if they commit acts of discrimination against other workers and the employer does nothing to remediate the situation.
Bottom line: employers beware of the new quasi-employee status of New York City freelancers.
COMPENSATION PROTECTIONS FOR FREELANCERS
As of May 15, 2017, employers who engage freelancers are subject to certain legal obligations with respect to contracts with and payments to freelancers and certain prohibitions in their conduct towards them.
First, any contract involving a freelancer that adds up to $800 or more must be in writing.
Second, any written contract (i.e., involving $800 or more) must have the names and mailing addresses of the freelancer and hiring party; itemization of the services that the freelancer will provide; value of the services provided; rate of compensation; method of compensation; and the date by which the hiring party must pay the freelancer or a mechanism by which that date will be determined.
Third, the hiring party cannot require the freelancer to accept less than the agreed-upon compensation in exchange for timely payment.
Fourth, the hiring party cannot retaliation against the freelancer for asserting his or her rights under the prevailing law (Freelance Isn’t Free Act).
Should the hiring party violate any of the foregoing legal obligations, then the freelancer can bring a complaint to the appropriate local agency (Office of Labor Policy and Standards) or to court. If the freelancer prevails in a lawsuit where the hiring party fails to pay compensation, then the freelancer will be awarded damages equivalent to twice the money owed and the court may award attorney’s fees and costs associated with bringing the case.
In short, employers who engage NYC freelancers must understand that their obligations to this class of workers have become more extensive and best practices dictate that they be treated exactly like employees. NYC freelancers should understand that they now have a robust set of protections upon which they can rely when dealing with clients and customers.
For further details about the recent changes in the legal landscape surrounding the use of freelancers please see the NYC Commission on Human Rights advisory, “Protections for Independent Contractors & Freelancers From Discrimination and Harassment,”[1] and the NYC Consumer Affairs advisory, “Freelance Isn’t Free Act: Frequently Asked Questions.”[2]
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[1] https://www1.nyc.gov/assets/cchr/downloads/pdf/materials/Independent_Contractor_One_Pager.pdf
[2] https://www1.nyc.gov/assets/dca/downloads/pdf/workers/FAQs-Freelance.pdf