July 27, 2017 - New York City's Freelance
Isn't Free Act, which went into effect on May 15, 2017,
protects domestic workers and other freelancers hired to perform
work as independent contractors. Specifically, the NYC law requires
written contracts for services valued at $800 or more and requires
that freelance workers are paid in full in a timely manner. The NYC
Department of Consumer Affairs (the "DCA") has published
rules, which will become effective on July 24, 2017, that are
intended to "clarify provisions in the law, establish
requirements to implement and meet the goals of the law, and
provide guidance to covered hiring parties and protected freelance
workers."
Section 12-05 of the DCA's rules places the following
limitations on the terms and conditions that may be contained in
contracts with freelance workers. These agreements may not include:
(i) a prospective waiver or limitation of rights under the Act;
(ii) a waiver or limitation of the freelance worker's right to
join in or receive any relief from a class, collective, or
representative proceeding; (iii) a waiver or limitation of
"any other procedural right normally afforded to a party in a
civil or administrative action" (such as procedural rights
under the New York Civil Practice Law and Rules, the Federal Rules
of Evidence, and the Federal Rules of Civil Procedure); and (iv)
provisions that restrict the right to divulge the contract's
terms to the Director of the NYC Office of Labor Standards.
The rules also clarify what the term "value" means both
when establishing coverage under the Act and to calculate damages
for violations of the Act. For example, damages for violations of
the Act are based on the value of the underlying contract and the
rules provide that the value of a contract between a freelance
worker and a hiring party includes "the reasonable value of
all services performed and/or anticipated, and the reasonable costs
for supplies and other expenses reasonably incurred by the
freelance worker."
Another clarification provided by the DCA's rules is that
freelance workers are entitled to the protections of the Act
"regardless of immigration status." The new rules also
establish a "motivating factor" standard (as opposed to a
but-for standard) applicable to retaliation claims under the Act,
which means that retaliation can be established even if a freelance
worker's exercise of a right under the Act was not the sole
reason an adverse action was taken against the worker.
Those who hire domestic workers and other freelancers to work as
independent contractors should be aware of the new rules.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
