On Oct. 13, 2019, New York City enacted Int. 136-A (the Law), expanding the employment protections of the New York City Human Rights Law (NYCHRL) to freelancers and independent contractors. The Law will take effect on Jan. 11, 2020.
The NYCHRL applies to employers with four or more employees. The Law changes the counting rule so that, when determining whether there are four employees, the headcount will now include (i) interns, freelancers and independent contractors and (ii) the employer's parent, spouse, domestic partner or child, if employed by the employer.
The Law has a 12-month look-back period for counting purposes. This means that to have fewer than four employees, the employer must have fewer than four "at all times during the period beginning twelve months before the start of an unlawful discriminatory practice and continuing through the end of such unlawful discriminatory practice." The four-employee threshold does not apply to gender-based harassment claims, as the NYCHRL's prohibition on sexual harassment covers all New York City employers, regardless of size.
The Law affords freelancers and independent contractors the same rights and protections as traditional employees under the NYCHRL, so they are now protected from discrimination, harassment and retaliation. The prohibition on pre-offer criminal background checks and pre-offer salary history inquiries will also apply to freelancers and independent contractors.
The Law does not require sexual harassment training for independent contractors and freelancers. However, the New York City Commission on Human Rights' guidance strongly advises employers to train independent contractors if they are "working on-site at an employer's workplace, are interacting with the employer's staff, and are anticipated to work more than 80 hours in a calendar year and for at least 90 days."
The takeaway is that employers must first determine whether they meet the NYCHRL's four-employee threshold. If they do, employers must now apply the NYCHRL protections to freelancers and independent contractors.
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