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Wendy Choi

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On August 28, 2024, New York State’s new law governing workplace-related contracts with freelancer workers – known as the Freelance Isn’t Free Act (FIFA) – will take effect. FIFA is designed to protect freelancers, i.e., independent contractors, from non-payment, late payment, and retaliation by hiring parties. It also imposes new requirements on hiring parties to provide written contracts, timely payment, and recordkeeping for freelance workers.

Background

In 2016, New York City enacted its own Freelance Isn’t Free Act, which was one of the first laws in the country to provide protections and remedies for freelance workers (and which we detailed here). The state law largely mirrors the city law, but with some key differences. For example, the state law excludes certain categories of workers from its coverages, including sales representatives, attorneys, licensed medical professionals, and construction contractors.Continue Reading How to prepare for New York State’s Freelance Isn’t Free Act

On Monday, June 3, 2024, Attorney General Platkin and Director Sundeep Iyer of the New Jersey Division on Civil Rights (DCR) proposed a new rule (N.J.A.C. 13:16) that would clarify the legal standard and the burdens of proof for claims of disparate impact discrimination under the New Jersey Law Against Discrimination (LAD). 

The standard does not change the legal framework already applied by the courts in the employment context under the LAD, but this would resolve any question about the viability of a disparate impact claim and/or the framework to be applied.

Disparate impact discrimination occurs when a policy or practice that is neutral on its face has a disproportionately negative effect on members of a protected class. Such a policy is unlawful unless the policy or practice is “necessary to achieve a substantial, legitimate, non-discriminatory interest” and there is no “equally effective alternative that would achieve the same interest.”Continue Reading Attorney General and DCR proposes rule to clarify disparate impact discrimination under the New Jersey Law Against Discrimination

The New Jersey Supreme Court’s recent ruling in Savage v. Township of Neptune, places limits on the enforceability of non-disparagement clauses in settlement agreements. The court unanimously held that such clauses are unenforceable if they prevent employees from discussing details related to claims of discrimination, retaliation, or harassment, aligning with protections under the New Jersey Law Against Discrimination (LAD).

Christine Savage, a former police sergeant, filed a lawsuit in December 2013 against the Neptune Township Police Department, alleging sexual harassment, sex discrimination, and retaliation. The parties entered into a settlement agreement which included a non-disparagement clause. In 2016, Savage filed another lawsuit against the same defendants, claiming they continued their discriminatory and retaliatory conduct. This second lawsuit was settled in July 2020, also with a non-disparagement clause in which both parties agreed not to“make any statements … regarding the past behavior of the parties, which statements would tend to disparage or impugn the reputation of any party.”Continue Reading New Jersey Supreme Court limits use of non-disparagement provisions in New Jersey LAD settlements

In the dynamic arena of labor laws and regulations, New York City is once again leading the charge with proposed changes that could have profound workplace implications. On February 28, 2024, the New York City Council introduced a trio of bills aimed at significantly curtailing the use of noncompete agreements in the Big Apple. Though these bills are currently pending, and it remains to be seen whether they will ultimately be enacted, employers should nevertheless take note of the bills given that they are part of a broader movement to rein in noncompete agreements across the U.S.:Continue Reading NYC legislators propose three bills to curtail noncompete agreements

On January 10, 2024, the U.S. Department of Labor (DOL) published its final independent contractor rule in the Federal Registrar in an attempt to provide greater clarity and consistency on how to classify a worker as an employee or independent contractor under the Fair Labor Standards Act (FLSA).

For decades, federal courts have analyzed the question using a multifactor, totality-of-the-circumstances economic reality test, with no factor or factors being dispositive. However, a rule that was published on January 7, 2021, known as the 2021 IC Rule, set forth “core factors” where some factors should be given additional weight over others. The 2021 IC Rule was criticized for not being supported by the DOL’s historical position and not fully aligned with the FLSA’s text.Continue Reading Navigating the labor landscape: Department of Labor announces final rule on independent contractors