bloombergbna.com Reproduced with permission. Published February 06, 2020. Copyright ஽ 2020 The Bureau of National Affairs, Inc. 800- 372-1033. For further use, please visit http://www.bna.com/copyright-permission-request/ INSIGHT: The Rise of Independent Contractor and Freelancer Protections in New York BY EMILY M. WAJERT Right to Accommodations Guidance issued by the If you felt a disturbance in the force recently, it may commission clarifies that under the amended law, ‘‘in- be due to a major change in New York City employment dependent contractors and freelancers have the right to law. receive reasonable accommodations for needs related to disabilities, pregnancy, lactation, religious obser- On Jan. 11, an amendment took effect that expanded vances, and status as victims of domestic violence, protections under the New York City Human Rights sexual offenses, or stalking.’’ Law (NYCHRL) to include freelancers and independent contractors. As a reminder, under the NYCHRL, accommodations are considered reasonable if they do not cause an un- The law amends Subdivision 23 of Section 8-107 of due hardship for the employer’s business. Moreover, the NYCHRL to state ‘‘the protections of [the chapter the city law requires employers to engage in a ‘‘coop- relating to employees and interns] apply to . freelanc- erative dialogue’’ with individuals requesting any ac- ers and independent contractors.’’ As such, freelancers commodations. and independent contractors (presumably including ga- lactic bounty hunters) now have the same protections Similar to obligations required under the Americans against discrimination, harassment and retaliation un- with Disabilities Act, the cooperative dialogue process der the NYCHRL as employees. directs employers to communicate orally or in writing with the individual regarding: As a reminder to employers, Section 8-107 of the 1. the individual’s accommodation needs; NYCHRL is rather expansive. (Think distance from Ta- tooine to Dagobah expansive). Before you call Obi Wan 2. potential accommodations (including alternatives for help, we’ve highlighted some of the major NYCHRL to a requested accommodation); and protections that, presumptively, now also apply to inde- 3. any difficulties the proposed accommodations pendent contractors and freelancers. could pose for the employer. Unlike in the interactive process mandated by the ADA, Discrimination Under the amended NYCHRL, inde- at the conclusion of the cooperative dialogue, the em- pendent contractors and freelancers are now protected ployer must provide the individual with a final written from discrimination and harassment in the workplace. determination identifying any accommodation it As such, an independent contractor, who was called granted or denied. a ‘‘stuck-up, half-witted, scruffy-looking nerf herder’’ Say, for example, (in keeping with our Star Wars by a manager, and who can tie such discriminatory theme) the Resistance retained an independent contrac- comments to him or herself being a member of a pro- tor droid, capable of human cyborg relations, to assist tected class, now has the right to file a complaint with in the fight against the Dark Side. If said independent the New York City Commission on Human Rights and contractor droid tragically lost his memory in an effort in court. to translate Sith language and reveal the location of the COPYRIGHT ஽ 2020 BY THE BUREAU OF NATIONAL AFFAIRS, INC. 2 Sith Wayfinder, and if said dedicated droid needed an into any of Solo’s credit history past—including inquir- accommodation due to this disability or impairment, ing into his debt with Jabba the Hutt. the Resistance would now be required to engage in the full cooperative dialogue process with him to determine Sexual Harassment Training The amended statute if an accommodation would be feasible. now includes the requirement that certain contractors complete annual sexual harassment prevention train- Fair Chance Act The NYCHRL prohibits inquiries ing. The guidance issued by the commission provides about the criminal record of applicants (including in that independent contractors and freelancers who work ads, on applications and during interviews) before mak- for an employer with 15 or more workers (including ing a job offer. employees, interns, and contractors) and who work: (i) The statute also requires employers to, before taking more than 80 hours in a calendar year, and (ii) for at any adverse action against an individual on the basis of least 90 days must complete the annual sexual harass- criminal history: ment prevention training. 1. provide a written copy of the criminal history in- The guidance clarifies that the 90 days do not need to quiry to the applicant; be consecutive and contractors who do not meet this 80 2. provide an Article 23-A analysis to the applicant in hour/90 days requirement do not need to be trained. writing, which must include ‘‘supporting documents’’ Moreover, the guidance states that ‘‘[i]ndividuals who that formed the basis of and reasons for the adverse ac- must be trained do not need to take the training at each tion; and workplace where they work over the course of a year,’’ 3. allow the individual at least three business days to and ‘‘[i]ndependent contractors and freelancers may respond, after providing the applicant with all the re- provide proof of completion of one sexual harassment quired documentation, and, during that time, hold the prevention training to multiple workplaces and need position open for the applicant. not repeat the training at multiple workplaces.’’ Since contained in the same chapter, these prohibitions There were certainly enough interactions throughout and protections likely now apply to independent con- the course of the canon to make an employment lawyer tractors and freelancers under the amended NYCHRL. raise an eyebrow and to think about suggesting some Fans of The Last Skywalker may recall [spoiler alert] sexual harassment training, (along with some weapons the big revelation of Poe Dameron’s previous training). (Yes, we’re looking at you Poe Dameron.) occupation—spice runner—which, according to Star Under the new NYCHRL, the Resistance would be re- Wars Wookieepedia, is a type of illegal drug smuggler. quired to train not only their employees, but also cer- tain independent contractors and freelancers about Poe, as an employee of the Resistance, previously sexual harassment in the workplace. would have been protected from inquiries about his criminal record prior to a conditional job offer; now, his Number of Workers Notably, the amended law also gang of spice runners applying for independent con- clarifies how to determine whether an employer has the tractor jobs in the Resistance at his bequest have simi- requisite ‘‘four or more employees’’ for purposes of cov- lar protections. (So someone should probably tell Rey erage under the NYCHRL, explaining the protections and Finn to keep their criminal record questions to will apply to employers that employed at least four themselves (at least until job offers are made)). workers (including independent contractors, freelance workers, and the employer’s parent, spouse, domestic Salary History Inquiries Under the amended partner or child if employed by the employer) at any NYCHRL, employers are also prohibited from inquiring time during the 12 months before the start of the dis- about, relying on, or searching public records to obtain criminatory act. information about an applicant’s, including an indepen- Because of the rather expansive nature of this new dent contractor and freelancer applicant’s, prior salary amendment, it is possible the Commission will issue ad- history. ditional guidance on the breadth of this new law. In the While there is some debate about whether Han Solo, meantime, New York City employers should review and arguably an independent contractor, ever received update their policies and training practices to ensure monetary compensation (as he had asked for) for res- compliance with the law. cuing Princess Leia many [double] moons ago, the next May the Force be with you! company he applied to work with would be barred from This column does not necessarily reflect the opinion inquiring about his prior salary history under the of The Bureau of National Affairs, Inc. or its owners. amended law. Author Information Credit Checks Similarly, the NYCHRL also contains a general prohibition on credit checks during the employ- Emily M. Wajert is an attorney in the employment ment process. Under the amended law, it is likely such law practice at Kramer Levin in New York. She repre- protections extend to independent contractors as well. sents employers in a variety of employment-related So following Return of the Jedi, if Han Solo applied claims and disputes, including discrimination, retalia- for a freelance position with Luke Skywalker and Obi- tion, wrongful discharge, whistleblower, restrictive cov- Wan, the Jedi-pair would generally be unable to look enants and bonus claims. COPYRIGHT ஽ 2020 BY THE BUREAU OF NATIONAL AFFAIRS, INC..