The New York City Commission on Human Rights (the Commission) has published guidance regarding an amendment to the New York City Human Rights Law (NYCHRL) that expanded protections under the law to independent contractors and freelancers.
As previously reported, the amended law, which took effect Jan. 11, 2020, revises the NYCHRL to provide that "the protections of [the chapter relating to employees and interns] apply to . . . freelancers and independent contractors." 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 Commission and in court.
The brief FAQ guidance issued by the Commission on Jan. 13, 2020, provides some clarification on the scope of these protections, stating that "independent contractors and freelancers have the right to receive reasonable accommodations for needs related to disabilities, pregnancy, lactation, religious observances, and status as victims of domestic violence, sexual offenses, or stalking."
Importantly, the guidance also clarifies that employers are now required to provide certain independent contractors and freelancers with sexual harassment prevention training in accordance with the NYCHRL. Specifically, the guidance states:
Similar to employees and interns, if an independent contractor works for an employer of 15 or more people [including employees, interns and contractors] and works:
- more than 80 hours in a calendar year and
- for at least 90 days (does not need to be consecutive),
then the individual must be trained.
Thus, independent contractors or freelancers who work less than 90 days or less than 80 hours in a calendar year, do not need to be trained.
The new guidance also mirrors previously issued guidance on sexual harassment training by providing that "[i]ndividuals who must be trained do not need to take the training at each workplace where they work over the course of a year" and that "[i]ndependent contractors and freelancers may provide proof of completion of one sexual harassment prevention training to multiple workplaces and need not repeat the training at multiple workplaces."
In terms of potential liability for contractors' conduct, according to the guidance:
Employers will be liable for discriminatory acts committed by independent contractors and freelancers if the conduct occurred in the course of the independent contractor's or freelancer's work for the employer and the employer had actual knowledge of the discriminatory behavior and acquiesced in such conduct, by, for example, failing to take steps to stop the conduct.
Notably, the guidance does not address the amendment's impact on other protections provided under the NYCHRL, including, for example, the Stop Credit Discrimination in Employment Act and the Fair Chance Act. However, based on the broad language of the provision, it should be anticipated that these protections of the NYCHRL also now extend to freelancers and independent contractors. We will continue to monitor the developments of the new law and report on any further clarifications of its scope.
What This Means for Employers
Employers with 15 or more workers (including employees, interns and contractors) should ensure any contractor who works 80 hours in a calendar year and for at least 90 days receives the appropriate sexual harassment prevention training. Moreover, employers who engage independent contractors or freelancers are encouraged to review and update their policies prohibiting discrimination, harassment and retaliation, as well as their reasonable accommodation policies, to ensure their application extends to independent contractors and freelancers.
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