Independent contractors have long been excluded from the protections afforded by traditional workplace anti-discrimination laws. That is no longer the case in New York State and City. In recent months, legislators in both Albany and Manhattan have extended substantial workplace-related protections – once only afforded to traditional employees – to freelancers, consultants, and the like (that is, independent contractors). We will discuss these measures below.
New York State
Effective October 2019, the antidiscrimination provisions of the New York State Human Rights Law (NYSHRL) now protect nonemployees, such as contractors, subcontractors, vendors, consultants, temporary workers, “gig” workers, and other non-employee persons providing services pursuant to a contract. In practice, this means that independent contractors may now pursue claims of workplace discrimination, harassment, and retaliation under the NYSHRL. This change is particularly impactful when considered in conjunction with the recently lowered standard for proving claims of harassment.
At present, these laws only apply to entities with four or more employees. However, effective February 8, 2020, the protections will cover all businesses operating within the state.
New York City
Similar to the above changes to New York State law, the New York City Council recently amended the New York City Human Rights Law (NYCHRL) to make clear that independent contractors are entitled to the same anti-discrimination protections as traditional employees. Guidance issued by the City on this sweeping amendment underscores that freelancers and independent contractors may, among other things, now request and receive reasonable accommodations for needs related to disability, pregnancy, lactation, religious observances, and status as victims of domestic violence, sexual offenses, or stalking.
New York City’s measure is especially notable because the NYCHRL is one of the most expansive workplace anti-discrimination laws in the country, affording workers unique protections not conferred by corresponding federal or New York State law. The NYCHRL, for instance, extends its protections to several protected classes that federal and New York State laws do not (for example, sexual and reproductive health decisions, caregiver status, and unemployment status). Independent contractors can therefore now avail themselves of these broad protections.
In addition, in accordance with a law that took effect on April 1, 2019, New York City businesses with 15 or more employees are required to provide employees with annual sexual harassment prevention training. Under a new measure, however, this requirement has now been extended to independent contractors. More particularly, according to guidance issued by New York City, if an independent contractor works (1) for an employer of 15 or more people, (2) more than 80 hours in a calendar year, and (3) for at least 90 days (which need not be consecutive), then the individual must receive the mandated sexual harassment prevention training.
Implications and next steps for employers
In light of these changes, New York State and City employers must ensure that independent contractors are treated lawfully and in accordance with the NYSHRL and the NYCHRL. This includes ensuring that workers are not subjected to unlawful discrimination, harassment, or retaliation, as well as providing reasonable accommodations where appropriate. Employers operating in New York State and City who use independent contractors should immediately update their policies and train human resources and supervisory personnel on these new laws. New York City employers with 15 or more workers should assess whether any of their independent contractors qualify to receive annual sexual harassment prevention training under the law and, if so, should take steps to implement the training within the year.