New York City Expands Protections Under the New York City Human Rights Law to Independent Contractors and Freelancers

On Sept. 12, 2019, the New York City Council passed a law, Int. 0136-A, that expands the scope of the New York City Human Rights Law (NYCHRL) to provide protections for freelancers and independent contractors.   

Specifically, 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.” The new law takes effect on Jan. 11, 2020.

The new law provides protections against harassment, discrimination and retaliation to freelancers and independent contractors and allows such workers to file such potential claims with the New York City Commission on Human Rights (the Commission) and in court.   

As a reminder to employers, Section 8-107 of the NYCHRL is rather expansive. The broad language of the provision may be read to extend the various protections of the NYCHRL to freelancers and independent contractors, including:

• Accommodation Requests: the requirement that employers engage in the cooperative dialogue process with individuals who request a reasonable accommodation.
  
  
• Fair Chance Act: prohibitions on inquiries about the criminal record of applicants (including in ads, on applications and during interviews) before making a job offer, and the requirements 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) after providing the applicant with all the required documentation, allow the individual at least three business days to respond and, during that time, hold the position open for the applicant.
  
  
• Unemployment Discrimination: prohibitions on discrimination due to the individual’s unemployment status.
  
  
• Salary History Inquiries: prohibitions on inquiries about, reliance on or searches of public records to obtain information about an applicant’s prior salary history.
  
  
• Lactation Accommodation: the requirement that employers provide protections required under the new lactation accommodation amendments to Section 8-107, including access to a designated lactation accommodation room.
  
  
• Victims of Domestic Violence: prohibitions of discrimination based on an individual’s status as a victim of domestic violence, sex offenses or stalking, and the provision of reasonable accommodations to individuals in these categories.
  
  
• Credit Checks: general prohibition on credit checks during the employment process.

Moreover, despite recent guidance from the Commission that employers are not required to train independent contractors with regard to sexual harassment, this new law may be read to mean that employers now must train freelancers and independent contractors in the same manner as they train employees.

We anticipate that the Commission will be issuing guidance regarding the breadth of this new law by Jan. 11, 2020, the effective date.

The new 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.

New York City has significantly expanded the protections of the NYCHRL not only by allowing freelancers and independent contractors the right to file complaints with the Commission when they face harassment or discrimination based on their race, gender, sexuality, religion or any other protected category, but also by expanding the reach of the NYCHRL, as it previously applied only to employers that employed four or more employees. We will monitor the developments of the new law and report on the expected clarification of its scope after the Commission releases guidance. In the meantime, employers are encouraged to review policies and practices to ensure compliance once the law takes effect.