New York City Expands Protections and Training Requirements for Independent Contractors
Effective January 11, 2020, the New York City Human Rights Law (NYCHRL) protects independent contractors and freelancers from discrimination, harassment, and retaliation on the same terms as employees. In addition, independent contractors have the right to receive reasonable accommodations for needs related to disabilities, pregnancy, lactation, religious observance, and status as victims of domestic violence, sexual offenses, or stalking, absent undue hardship. Furthermore, it is now clear that employers are required to provide sexual harassment prevention training to certain independent contractors, not just employees.
Sexual Harassment Prevention Training
As employers will recall, all employers in New York City with 15 or more workers (including independent contractors and individuals based outside of NYC) are required to provide annual sexual harassment prevention training to all employees who work in New York City more than 80 hours in a calendar year and for at least 90 days, regardless of where that employee is based. In light of the expansion to the NYCHRL, the NYC Commission on Human Rights recently issued guidance which clarifies that employers are also required to have their independent contractors complete annual sexual harassment prevention training. Specifically, if an independent contractor works for an employer with 15 or more workers, and the independent contractor works more than 80 hours in a calendar year and for at least 90 days, the independent contractor must receive sexual harassment prevention training.
The guidance states that independent contractors do not need to take the training at each workplace where they work. Rather, they may provide proof of completion of one sexual harassment prevention training course to multiple workplaces. Employers, however, likely bear the risk if the employer relies on a training from another employer that is not compliant with the New York City requirements. Therefore, employers may wish to exercise caution in terms of relying on trainings conducted by others.
Employer Coverage Expanded under City and State Laws
Portions of the NYCHRL relating to employer coverage were also recently amended. Previously, an employer was only covered by the NYCHRL if it had at least 4 employees, and independent contractors who did not have their own employees were counted as employees for the purpose of determining employer coverage. As of January 11, 2020, an employer is covered by the NYCHRL if it has at least 4 employees “at all times during the period beginning twelve months before the start of an unlawful discriminatory practice and continuing through the end of such unlawful discriminatory practice.” The prior version of the law did not set forth the timeframe for establishing employer coverage. In addition, for the purpose of determining if an employer has 4 or more employees, the employer must count (1) individuals working as independent contractors in furtherance of an employer’s business enterprise and (2) the employer’s parent, spouse, domestic partner or child if employed by the employer. The fact that an independent contractor has his or her own employees no longer excludes that contractor from counting as an employee for the purpose of determining employer coverage.
Regardless of these amendments, employers of any size are still covered by the NYCHRL for claims of gender-based harassment.
New York City is not alone in its expansion of employment discrimination protections. Employers may recall that as of October 11, 2019, the New York State Human Rights Law (NYSHRL) was expanded to protect “non-employees” such as contractors, subcontractors, vendors, consultants, and other persons providing services pursuant to a contract. In addition, effective February 8, 2020, all employers within New York State, regardless of how many individuals they employ, will be covered by the NYSHRL. This lowers the current threshold of four employees, that applies to all claims except sexual harassment.
Employers who retain independent contractors and freelancers should review their equal employment opportunity policies and training protocols to ensure compliance with evolving State and City requirements. If you have any questions regarding compliance with these developments, or require assistance amending your policies, please contact Amanda M. Baker at (212) 324-1715, or any attorney at the Firm.
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