Freelance workers: Free from bias, free to be.

Roughly one-third of New York City's workforce is comprised of freelance workers, independent contractors. The relative autonomy of these working arrangements is usually a perk, but "alone on an island" is no place to be when it comes to workplace bias and discrimination. Most critically in that context, freelancers often lack the internal support system traditional employees enjoy: close, trusting relationships with at least a few coworkers, access to HR support and related counseling, inside knowledge of power structures and politics, easier access to key decision-makers and so forth. As a result, victims rarely come forward: an estimated 75% of acts of discrimination against freelance workers go unreported, according to the Freelancers Union. Worse, even if reported, the legal redress may be inadequate or non-existent, as independent workers are not protected by key federal anti-harassment laws, such as Title VII, the Americans with Disabilities Act, and the Age Discrimination Employment Act, among others.

Against this backdrop, recently enacted law Int 136-A, extending to freelancers the anti-discrimination and bias protections of the New York City Human Rights Law, is being hailed as a monumental step forward. In the words of sponsoring Councilman Brad Lander: the City is "clawing back the rights and expanding protections that all workers deserve."

The new law goes into effect on January 11, 2020, when the NYC Commission on Human Rights ("NYC Commission") is expected to issue further guidance. Here is what we know now, and what we can expect to see.

Applicability

Prior to the new law, most provisions of the NYC Human Rights Law applied only to organizations that had four or more traditional employees. Now, coverage is extended to those organizations employing or engaging at least four employees or freelance workers combined. Many city businesses will therefore be covered for the first time, and in all cases, freelance workers will have the same rights under the law as traditional employees to be free from harassment and discrimination based on gender, national origin, race, religion, sexual orientation, immigration status, disability and a host of other protected categories. These rights includes include the ability to file complaint in court and with the NYC Commission.

Scope

The anti-discrimination provisions of the NYC Human Rights Law are clearly within the scope of the extended protections. However, other key provisions of the Human Rights Law are not obviously in scope. These include various restrictions on completing credit checks, inquiries into salary history and criminal background checks, prior to offer of employment. Still, it wouldn't be a surprise if those changes are made in the near future. New York City has been a leader in expanding workplace rights for non-traditional workers, beginning with the Freelance Isn't Free Law in 2017 which was a first-of-its-kind law protecting independent workers from wage theft and retaliation for demanding timely pay. NY Governor Cuomo has also indicated his support for initiatives that would expand protections at the state level.

Notice & Training

To ensure workers are aware of their rights, and obligations, new workplace laws can come with mandated notice and training provisions. While it is not yet clear here, we expect those mandates will be forthcoming. Even before the new law, the NYC Commission had "strongly advised" businesses, in certain situations, to train independent contractors on sexual harassment, after the NYS Department of Labor cautioned they couldn't go as far as to mandate it under existing law. With the new law explicitly expanding the right to be free from harassment to independent workers, it is virtually certain the Commission will now require that training and perhaps more, to capture all protected categories under the law. Regardless, we can be certain the active Freelancers Union will embark on an educational campaign, and responsible organizations will act now to plan enhancements to their training programs and internal procedures for reporting and acting on complaints of harassment and bias.

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This latest effort by NYC to protect more of its workers is a laudable one. In just ten years, the Freelancers Union estimates that a majority of all workers in the United States will be freelancers. While the EEOC has indicated it is studying the possible extent of protection at the federal level, state and local governments are leading the way in respect of labor rights for non-traditional employees. Thanks to NYC's new approach to anti-discrimination and bias, we continue towards a future where all freelancers are free from bias, and free to be—whoever they are.

This Legal Alert does not establish an attorney-client relationship with Timothy K. Giordano, Esq., and is not intended to be a complete representation of applicable state, federal and local law. Nothing herein should be construed as legal advice. 2019 All Rights Reserved.