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INSIGHT: The Rise of Independent Contractor and Freelancer Protections in New York

Feb. 6, 2020, 9:00 AM

If you felt a disturbance in the force recently, it may be due to a major change in New York City employment law.

On Jan. 11, an amendment took effect that expanded protections under the New York City Human Rights Law (NYCHRL) to include freelancers and independent contractors.

The law amends Subdivision 23 of Section 8-107 of the NYCHRL to state “the protections of [the chapter relating to employees and interns] apply to … freelancers and independent contractors.” As such, freelancers and independent contractors (presumably including galactic bounty hunters) now have the same protections against discrimination, harassment and retaliation under the NYCHRL as employees.

As a reminder to employers, Section 8-107 of the NYCHRL is rather expansive. (Think distance from Tatooine to Dagobah expansive). Before you call Obi Wan for help, we’ve highlighted some of the major NYCHRL protections that, presumptively, now also apply to independent contractors and freelancers.

Discrimination

Under the amended NYCHRL, independent contractors and freelancers are now protected from discrimination and harassment in the workplace.

As such, an independent contractor, who was called a “stuck-up, half-witted, scruffy-looking nerf herder” by a manager, and who can tie such discriminatory comments to him or herself being a member of a protected class, now has the right to file a complaint with the New York City Commission on Human Rights and in court.

Right to Accommodations

Guidance issued by the commission clarifies that under the amended law, “independent contractors and freelancers have the right to receive reasonable accommodations for needs related to disabilities, pregnancy, lactation, religious observances, and status as victims of domestic violence, sexual offenses, or stalking.”

As a reminder, under the NYCHRL, accommodations are considered reasonable if they do not cause an undue hardship for the employer’s business. Moreover, the city law requires employers to engage in a “cooperative dialogue” with individuals requesting any accommodations.

Similar to obligations required under the Americans with Disabilities Act, the cooperative dialogue process directs employers to communicate orally or in writing with the individual regarding:

  1. the individual’s accommodation needs;
  2. potential accommodations (including alternatives to a requested accommodation); and
  3. any difficulties the proposed accommodations could pose for the employer.

Unlike in the interactive process mandated by the ADA, at the conclusion of the cooperative dialogue, the employer must provide the individual with a final written determination identifying any accommodation it granted or denied.

Say, for example, (in keeping with our Star Wars theme) the Resistance retained an independent contractor droid, capable of human cyborg relations, to assist in the fight against the Dark Side. If said independent contractor droid tragically lost his memory in an effort to translate Sith language and reveal the location of the Sith Wayfinder, and if said dedicated droid needed an accommodation due to this disability or impairment, the Resistance would now be required to engage in the full cooperative dialogue process with him to determine if an accommodation would be feasible.

Fair Chance Act

The NYCHRL prohibits inquiries about the criminal record of applicants (including in ads, on applications and during interviews) before making a job offer.

The statute also requires employers to, before taking any adverse action against an individual on the basis of criminal history:

  1. provide a written copy of the criminal history inquiry to the applicant;
  2. provide an Article 23-A analysis to the applicant in writing, which must include “supporting documents” that formed the basis of and reasons for the adverse action; and
  3. allow the individual at least three business days to respond, after providing the applicant with all the required documentation, and, during that time, hold the position open for the applicant.

Since contained in the same chapter, these prohibitions and protections likely now apply to independent contractors and freelancers under the amended NYCHRL.

Fans of The Last Skywalker may recall [spoiler alert] the big revelation of Poe Dameron’s previous occupation—spice runner—which, according to Star Wars Wookieepedia, is a type of illegal drug smuggler.

Poe, as an employee of the Resistance, previously would have been protected from inquiries about his criminal record prior to a conditional job offer; now, his gang of spice runners applying for independent contractor jobs in the Resistance at his bequest have similar protections. (So someone should probably tell Rey and Finn to keep their criminal record questions to themselves (at least until job offers are made)).

Salary History Inquiries

Under the amended NYCHRL, employers are also prohibited from inquiring about, relying on, or searching public records to obtain information about an applicant’s, including an independent contractor and freelancer applicant’s, prior salary history.

While there is some debate about whether Han Solo, arguably an independent contractor, ever received monetary compensation (as he had asked for) for rescuing Princess Leia many [double] moons ago, the next company he applied to work with would be barred from inquiring about his prior salary history under the amended law.

Credit Checks

Similarly, the NYCHRL also contains a general prohibition on credit checks during the employment process. Under the amended law, it is likely such protections extend to independent contractors as well.

So following Return of the Jedi, if Han Solo applied for a freelance position with Luke Skywalker and Obi-Wan, the Jedi-pair would generally be unable to look into any of Solo’s credit history past—including inquiring into his debt with Jabba the Hutt.

Sexual Harassment Training

The amended statute now includes the requirement that certain contractors complete annual sexual harassment prevention training. The guidance issued by the commission provides that independent contractors and freelancers who work for an employer with 15 or more workers (including employees, interns, and contractors) and who work: (i) more than 80 hours in a calendar year, and (ii) for at least 90 days must complete the annual sexual harassment prevention training.

The guidance clarifies that the 90 days do not need to be consecutive and contractors who do not meet this 80 hour/90 days requirement do not need to be trained. Moreover, the guidance states that “[i]ndividuals who must be trained do not need to take the training at each workplace where they work over the course of a year,” and “[i]ndependent contractors and freelancers may provide proof of completion of one sexual harassment prevention training to multiple workplaces and need not repeat the training at multiple workplaces.”

There were certainly enough interactions throughout the course of the canon to make an employment lawyer raise an eyebrow and to think about suggesting some sexual harassment training, (along with some weapons training). (Yes, we’re looking at you Poe Dameron.)

Under the new NYCHRL, the Resistance would be required to train not only their employees, but also certain independent contractors and freelancers about sexual harassment in the workplace.

Number of Workers

Notably, the amended law also clarifies how to determine whether an employer has the requisite “four or more employees” for purposes of coverage under the NYCHRL, explaining the protections will apply to employers that employed at least four workers (including independent contractors, freelance workers, and the employer’s parent, spouse, domestic partner or child if employed by the employer) at any time during the 12 months before the start of the discriminatory act.

Because of the rather expansive nature of this new amendment, it is possible the Commission will issue additional guidance on the breadth of this new law. In the meantime, New York City employers should review and update their policies and training practices to ensure compliance with the law.

May the Force be with you!

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Emily M. Wajert is an attorney in the employment law practice at Kramer Levin in New York. She represents employers in a variety of employment-related claims and disputes, including discrimination, retaliation, wrongful discharge, whistleblower, restrictive covenants and bonus claims.

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