New York Labor and Employment Law Report
September 16, 2024
On September 5, 2024, Governor Kathy Hochul signed the Retail Worker Safety Act (A 8947 / S 8358) into law. It requires certain New York retailers to adopt safety measures to address and prevent workplace violence.
August 28, 2024
On Nov. 22, 2023, Gov. Kathy Hochul signed into law the “Freelance Isn’t Free Act” (the Act or FIFA), which was amended on March 1, 2024. The Act is codified in Article 44-A of the New York General Business Law. Article 44-A of the General Business Law creates several protections for freelance workers retained as independent contractors. The Act is intended to ensure that freelance workers receive timely compensation for all services performed. The law goes into effect on Aug. 28, 2024.
The Act Applies to “Freelance Workers” and “Hiring Parties”
Subject to specified exceptions, the Act defines freelance workers as “any natural person or organization composed of no more than one natural person, whether or not incorporated or employing a trade name, that is hired or retained as an independent contractor by a hiring party to provide services in exchange for an amount equal to or greater than eight hundred dollars, either by itself or when aggregated with all contracts for services between the same hiring party and freelance worker during the immediately preceding one hundred twenty days.” In short, a freelance worker is any individual hired to provide services of $800 or more as part of a one-time transaction or over the course of several transactions with the same hiring party in the preceding 120 days.
Individuals engaged in the practice of law, licensed medical professionals, construction contractors, and sales representatives as defined by Section 191-a of the Labor Law, are excluded from the definition of freelance worker.
The Act broadly defines “hiring party” as “any person who retains a freelance worker to provide any service,” except local, state, and federal governments. Given the breadth of this definition most individuals and organizations that hire independent contractors to provide services will need to comply with the Act’s requirements.
The Act’s Primary Requirements
The Act imposes several requirements for hiring parties engaging freelance workers. As discussed in greater detail below, the main requirements pertain to written contracts, timely payment and anti-retaliation. The Act also creates an administrative complaint procedure for freelance workers whose rights have been violated as well as a private right of action.
Written Contract
Most significantly, the Act requires a hiring party that retains the services of a freelance worker to reduce the contract to writing. Written agreements must include:
The Act explicitly states that freelance workers and hiring parties may not waive the rights provided under the Act, and any contract provision attempting to do so shall be void and unenforceable.
A copy of the written contract must be furnished to the freelance worker (either physically or electronically) and must be retained by both parties. The hiring party must retain a copy of the contract for a minimum of six years. Though not explicitly stated, the Act suggests that the burden of preparing the written contract falls on the hiring party.
Upon request, hiring parties must also make their contracts with freelance workers available to the attorney general. The failure to produce a contract upon request carries significant consequences, including a presumption that the terms presented by the freelance worker are the agreed upon terms.
Model contracts will be made available on the Department of Labor’s website.
Timely Payment
The Act requires that freelance workers be paid for their services in a timely manner. For purposes of the Act, this means that freelance workers must be paid on or before the date compensation is due under the terms of the contract; or if the contract does not state when payment is due, payment must be made within 30 days of completion of the freelance workers’ services.
Once a freelance worker has begun performing services under the contract, the hiring party may not require that the freelance worker accept less pay than agreed upon, as a condition of timely payment.
Discrimination and Retaliation Prohibited
The Act prohibits discrimination and retaliation against freelance workers who exercise or attempt to exercise their rights under the Act.
Avenues for Redress
The New York State Attorney General is authorized to investigate alleged violations of the Act and to provide appropriate remedies. The Attorney General may bring an action on behalf of the State to enjoin a hiring party from engaging in acts that violate FIFA and to obtain restitution for affected freelance workers.
The Act separately creates a private right of action for aggrieved freelance workers. Such claims may be brought in a court of competent jurisdiction for up to two or six years, depending on the nature of the alleged violation. Claims alleging violations of the written contract requirement may be brought for up to two years. Claims alleging violations of the timely payment requirement or the anti-discrimination and anti-retaliation provisions may be brought for up to six years.
Penalties
In the event that the Attorney General pursues such a civil action, civil penalties may be assessed against the hiring party in the amount of $1,000 for a first violation, $2,000 for a second violation and $3,000 for a third or subsequent violation. Where there is evidence of a pattern or practice of violations under the Act, civil penalties may be imposed of not more than $25,000.
The damages and penalties available to a plaintiff for violations of the Act depend on the nature of the violation. For example:
New York City’s Act
For those residing and doing business in New York City, the FIFA requirements noted above may not be entirely unfamiliar. The passage of FIFA follows New York City’s enactment of similar legislation in 2017. In fact, FIFA is largely modeled after the New York City Freelance Isn’t Free Act (the City Act), which also requires written contracts and timely payment.
The terms “freelance worker” and “hiring party” are defined similarly under FIFA and the City Act, except that the construction contractor exception is not recognized under the City Act’s definition of freelance worker.
Similar to FIFA, the City Act requires a written contract whenever a hiring party retains the services of a freelance worker and the contract has a value of $800 or more either by itself or when aggregated with all contracts for services between the same parties in the preceding 120 days. The terms that must be included in such a written contract are similar to the requirements under FIFA, except that the City Act does not require freelance workers to provide a list of services rendered under the contract in order to ensure timely payment.
Both FIFA and the City Act also contain identical provisions regarding: (i) the timeliness of payments to be made to freelance workers; and (ii) the prohibition of discrimination or retaliation against freelance workers who exercise their rights under applicable law. Like FIFA, the City Act creates a private right of action and uses the same two and six year limitation periods described above.
The key differences between FIFA and the City Act include FIFA’s record retention requirement and its requirement that the hiring party furnish a copy of the written contract to the freelance worker. The City Act is silent on these matters. The City Act also establishes its own administrative complaint process, through which freelance workers may file complaints with the City’s Office of Labor Policy & Standards.
Though FIFA and the City Act are largely coextensive, FIFA specifically states that it shall not be construed or interpreted to override or supplant any of the provisions of the City Act.
Conclusion
Individuals and organizations that engage the services of freelance workers should prepare to comply with the Freelance Isn’t Free Act requirements by reviewing internal processes for engaging the services of freelance workers and independent contractors before the effective date of Aug. 28, 2024. Among other things, this includes preparing written contracts that comply with the requirements set forth above when contracting with covered freelance workers.
If you have any questions about the Freelance Isn’t Free Act, or any of the information contained in this memo, please contact Rebecca Kimura, Hannah Redmond or the Bond attorney with whom you are in regular contact.
June 28, 2024
Effective June 19, 2024, New York State Labor Law Section 206-c requires all private and public employers to provide 30 minutes of paid break time for employees to express breast milk when the employee has a reasonable need to express breast milk. Prior to enactment of this law, New York State employers were only required to provide reasonable unpaid break time for breast milk expression.
The New York State Department of Labor (NYSDOL) has issued guidance FAQs on the amended law. NYSDOL’s guidance provides that paid break time must be permitted as often as an employee reasonably needs to express breast milk. NYSDOL has issued a template Policy on the Rights of Employees to Express Breast Milk in the Workplace which provides:
HOW OFTEN DURING THE WORKDAY CAN I TAKE BREAKS TO PUMP BREAST MILK? The number of paid breaks an employee will need is unique to each employee. Your employer must accommodate you whenever you reasonably need to take a break to express milk.
Employees must also be permitted to use existing paid break or meal time if they need additional time for breast milk expression beyond the paid 30 minutes, and employers may not require employees to make up this missed work time. Employees are entitled to paid breaks for breastmilk expression for up to three years following childbirth.
Employers are required to provide written notice of breast milk expression rights to all employees at the time of hire and then annually thereafter. Additionally, notice must be provided when an employee returns from childbirth leave.
Employees must provide reasonable advance notice of their need for lactation breaks. As a reminder, employers must continue to provide a room or other location to express breast milk once an employee submits a written request to their direct supervisor or an individual designated by the employer to process lactation room requests. Employers must respond to lactation room requests in writing within five days.
Lactation rooms must have the following:
Employers are prohibited from discriminating in any way against an employee who chooses to express breast milk in the workplace.
If you have any questions about the information presented in this news alert, please contact Laura Harshbarger, Lance Willoughby-Hudson, any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.
April 18, 2024
New York has long protected its residents from discrimination in the job hiring process with the New York State Human Rights Law (NYSHRL), which was originally passed in 1945. New York City also has its own Human Rights Law (NYCHRL) that further covers discrimination in job hiring.
January 23, 2024
Governor Hochul’s 2025 Executive Budget Proposal released last week includes a number of significant legislative proposals that would directly impact employers in New York state.
November 27, 2023
On Nov. 17, 2023, Gov. Kathy Hochul signed Senate Bill S.3255, which amends Section 297 of the New York Executive Law by extending the statute of limitations for filing complaints of unlawful discrimination with the Division of Human Rights (DHR) to three years.
October 9, 2023
On Sept. 15, 2023, New York State Gov. Kathy Hochul signed an amendment to a New York Labor Law that would invalidate certain intellectual property provisions in employment agreements, effective immediately. Under this amendment, Section 203-f, any provision in an employment agreement that requires employees to assign the rights to inventions to their employer will now be unenforceable if the invention was developed by the employee using the employee’s own property and time. The introduction of Section 203-f has significant implications for employers wishing to secure patent protection of inventions made by employees while under an employment contract. To obtain the best protection possible, it is recommended that New York employers review their employment agreements with respect to restrictions and assignment clauses to ensure compliance with this new labor law.
Read More >> New NYS Labor Law Shines Light on Employee-Driven Innovation
October 6, 2023
On Sept. 14, 2023, Gov. Kathy Hochul signed three pieces of legislation into law, all of which are reflective of Gov. Hochul’s ongoing efforts to strengthen workers’ rights in New York State.
Written Notice of Unemployment Benefits
Bill (S. 4878-A/A. 398-A) amends Section 590 of the Labor Law. Under this new legislation, employers must provide written notice of eligibility for unemployment benefits to any employee who has been terminated, temporarily separated, experienced a reduction in hours or any other interruption of continued employment that results in total or partial unemployment. This information must be disclosed on a form furnished or approved by the Department of Labor (DOL).
The new law will take effect on Nov. 13, 2023.
Personal Account Information Disclosure
Beginning March 12, 2024, employers are prohibited from requesting, requiring or coercing an employee or job applicant to: (i) disclose a username and password or other login information in order to access a personal account through an electronic communication device; (ii) access a personal account in the employer’s presence; or (iii) reproduce information contained within a personal account through unlawful measures. This new legislation, which amends the Labor Law to add section 201-i, prohibits an employer from discharging or disciplining an employee or refusing to hire an applicant for failure to disclose such information.
This law is also subject to certain exceptions and limitations. For example, an employer may require disclosure of personal information in order to access nonpersonal accounts that allow access to the employer’s internal computer or information systems. Employers may also view, access and rely on information obtained through the public domain. The law also allows an employer to obtain login information for accounts provided by the employer where the account is used for business purposes and the employee was provided prior notice of the employer’s right to inquire about such information.
An employer is also permitted to access an electronic communications device which is paid for in whole or in part by the employer where the provision of or payment for such device was conditioned on the employer’s right to access. However, the employee must have been provided with prior notice of the condition and explicitly agreed to it. Nevertheless, the employer is still prohibited from accessing any personal accounts on the device.
This law excludes law enforcement agencies, fire departments and departments of corrections and community supervision.
DOL Notices to Unemployment Applicants
Under this new legislation, the DOL is now required to provide notice to unemployment applicants of the supplemental nutrition assistance program (SNAP) and the special supplemental nutrition program for women, infants and children (WIC). This new law takes effect Jan. 12, 2024.
If you have any questions about the information presented in this memo, please contact Kali Schreiner, any attorney in Bond’s labor and employment practice or the attorney at Bond with whom you are regularly in contact.
September 25, 2023
On October 4, 2023, the COVID-19 vaccine mandate for health care workers in New York will officially be repealed. On September 18, 2023, the New York State Department of Health (NYSDOH) submitted a Notice of Adoption to repeal 10 N.Y.C.R.R. 2.61 (the Regulation), which was the emergency regulation requiring covered health care employers to ensure that their personnel were fully vaccinated against COVID-19.
Read More >> New York State Officially Repeals the COVID-19 Vaccine Mandate for Health Care Workers
September 14, 2023
New York State's pay transparency law becomes effective on Sept. 17, 2023. Labor Law § 194-b requires employers to disclose salary and wage ranges for advertised jobs and promotions.
The law applies to employers with four or more employees and covers jobs that will be physically performed, at least in part, in New York State, as well as remote-work positions that report to a supervisor in New York.
Read More >> Reminder: Pay Transparency Law Takes Effect Sept. 17, 2023
September 6, 2023
On Aug. 30, 2023, the U.S. Department of Labor (USDOL) issued a proposed rule to increase the minimum weekly salary to qualify for the Fair Labor Standards Act white collar exemptions from $684 per week (the annual equivalent of $35,568) to $1,059 per week (the annual equivalent of $55,068). This new proposed salary level is based on the 35th percentile of earnings of full-time salaried workers in the lowest-wage Census Region. When the exempt salary level was last raised to $684 effective Jan. 1, 2020, the USDOL set it at the 20th percentile of earnings of full-time salaried workers in the lowest-wage Census Region.
August 29, 2023
Can a New York employer be held liable for economic losses suffered by a party that has no business relationship with the employer based on an employee’s unauthorized fraudulent scheming? This issue was recently presented to the New York Court of Appeals. The Court recognized such liability on a claim of negligent supervision and retention notwithstanding a vigorous dissent.
Read More >> NY Employers Face Expanded Liability for Negligent Supervision
