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NYCHRL Expands Employment Protections for Independent Contractors and Freelancers

December 18, 2019

On January 11, 2020, a New York City law will go into effect that extends the employment protections under the New York City Human Rights Law (“NYCHRL”) to independent contractors and freelancers. These protections include the right to be free from discrimination, harassment, or retaliation and the ability to file claims with the New York City Commission on Human Rights (the “Commission”). Additionally, the NYCHRL’s prohibition on pre-job offer criminal background checks, pre-employment credit checks, and pre-hire salary history inquiries also applies to independent contractors and freelancers.

The new law does not require independent contractors and freelancers to receive sexual harassment training. However, the Commission’s guidance strongly advises employers to train independent contractors that 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.”

New Formula for Employee Threshold

The NYCHRL applies to employers with four or more employees. Under the new law, employers must now count the following individuals to determine if they meet the four-employee threshold: (i) individuals working as freelancers, independent contractors, and interns; and (ii) the employer’s parent, spouse, domestic partner, or child, if that person is employed by the employer.

The new law also creates a 12-month look-back period for determining the number of employees. Therefore, an employer must have fewer than four employees “at all times during the period beginning 12 months before the start of an unlawful discriminatory practice and continuing through the end of such unlawful discriminatory practice” to avoid the threshold.

As a reminder, the NYCHRL’s prohibition on gender harassment covers all NYC employers regardless of size, so the four-employee threshold does not apply to complaints of sexual harassment.

Conclusion

NYC employers need to calculate whether they meet the NYCHRL’s new formula for the four-employee threshold. If they do, employers should apply the appropriate anti-harassment and anti-discrimination policies to their independent contractors and freelancers.

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