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December 2019

Freelancers and Independent Contractors to be Expressly Protected Under New York City Human Rights Law

Recently, the New York City Council passed Local Law No. 172 of 2019, Council Intro. No. 136-A of 2018 (“the Law”).  The Law amends sections of the New York City Human Rights Law (“NYCHRL”) to, among other things, expand the provisions of the NYCHRL to include employment protections for freelancers and independent contractors.  The Law is scheduled to take effect on January 13, 2020.

What the Law Does: 

Prior to the amendment and in its current form, the NYCHRL (Title 8 of the New York City Administrative Code), at Section 8-107(23), states: “The provisions of this chapter relating to employees shall apply to interns.”  The amendment makes a noteworthy change to the existing language and adds two categories of covered individuals: “The protections of this chapter relating to employees shall apply to interns, freelancers and independent contractors.” (emphasis added).  Freelancers and independent contractors will be afforded the same rights and protections as “traditional employees” under the NYCHRL, including protections from employment discrimination, harassment, and retaliation and the right to file complaints against their employers with the New York City Commission on Human Rights (“Commission”) and in court.  In part, the Law memorializes what many practitioners have found to be the Commission’s existing approach.  In testimony before the Committee on Civil and Human Rights, the General Counsel of the Commission stated that the Commission already interprets the NYCHRL to cover independent contractors.

The Law also more explicitly includes independent contractors in the analysis of what constitutes a covered employer under the NYCHRL.  In most cases, an entity falls outside the scope of the NYCHRL if it has fewer than four (4) persons in its employ.  “[N]atural persons employed as independent contractors to carry out work in furtherance of an employer’s business enterprise who are not themselves employers” had already been “counted as persons in the employ of such employer.”  NYCHRL 8-102.  As to apparently eliminate all doubt, the Law also amends this section of the NYCHRL to include “natural persons . . . working as independent contractors” among those to be counted.  (emphasis added).  Also to be counted are “the employer’s parent, spouse, domestic partner or child if employed by the employer.”  The Law specifies what had previously been “such family members” under the NYCHRL to be included in the count.  The Law, however, does not amend the NYCHRL to extend its provisions to govern the employment by an employer of those parents, spouse, domestic partner, or children.

Additional NYCHRL Protections to Consider: 

It is very important for employers to be aware that Section 8-107, much like the rest of the NYCHRL, is expansive, both in terms of the protections it affords and in terms of those it protects.

The NYCHRL prohibits falsely reporting that an employment position is not available, refusing to employ, terminating employment, and discriminating in compensation or in the terms, conditions, or privileges of employment, where such actions are based upon an applicant’s or an employee’s membership in a protected class.  The protected classes of individuals under the NYCHRL include:  Age (actual or perceived); Race; Color; Religion/Creed; National Origin; Gender (actual or perceived gender, gender identity, and gender expression, including a person’s actual or perceived gender-related self-image, appearance, behavior, expression, or other gender-related characteristic, regardless of the gender assigned to that person at birth); Disability (actual or perceived); Pregnancy (including childbirth or related medical condition and lactation accommodations); Marital or Partnership Status; Sexual Orientation; Uniformed Service Status; and Alienage or Citizenship Status.  Moreover, in the employment context, additional protections are afforded based upon: Caregiver Status; Sexual and Reproductive Health Decisions; Arrest or Criminal Conviction Record; Status (actual or perceived) as a Victim of Domestic Violence, Sexual Offense, or Stalking; Consumer Credit History; Unemployment Status; and Salary History.

What Employers Should Do to Protect Themselves: 

An employer must first determine whether it is a covered employer under the NYCHRL’s rule of four (4) or more employees.  If the employer is a covered employer, it should take affirmative steps to ensure compliance with the NYCHRL.  For example, an employer that had fifteen (15) or more employees at any time in the prior calendar year must provide anti-sexual harassment training to its staff.  What had previously been the Commission’s strong advice to provide this training to independent contractors and freelancers (working on-site at an employer’s workplace, interacting with the employer’s staff, and anticipated to work more than eighty (80) hours in a calendar year and for at least ninety (90) days) will likely become mandatory under The Stop Sexual Harassment in NYC Act, implemented by the NYCHRL, as amended.

Alex D. Dumas
David J. Grech