On May 15th, the Freelance Isn’t Free Act (“FIFA”) went into effect in New York City. The Department of Consumer Affairs (“DCA”) recently issued guidelines to help employers comply with the law.

Coverage and Immigration Status

FIFA protects all freelance workers regardless of their immigration status.

Contract Value Threshold

As previously explained, FIFA requires parties that retain freelance workers to provide any service where the contract between them has a value of $800 or more to reduce their agreement to a written contract. Under the DCA guidelines, the value of the contract includes “the reasonable value of all actual or anticipated services, costs for supplies, and any other expenses under the contract.”

Retaliation

FIFA prohibits hiring parties from retaliating against a freelance worker who exercises his/her rights under FIFA. Under the DCA guidelines, retaliation includes, but is not limited to, any adverse action related to perceived or actual immigration status or work authorization. In order to prove retaliation, a freelance worker can provide circumstantial or actual evidence of the hiring party’s adverse action. Any hiring party who denies a work opportunity to a freelance worker covered under FIFA is liable of retaliation regardless of whether a contract exists between them.

Waiver of Rights

All waivers or limitation for a freelance worker to participate or receive money in a judicial action are invalid as a matter of law under FIFA.

Employers should ensure that contracts entered into with freelance workers (or existing contracts that are renewed) with a value of $800 or more comply with FIFA and the published DCA rules.

This post was written with assistance from Corben J. Green, a 2017 Summer Associate at Epstein Becker Green.

On May 15, 2017, New York City’s Freelance Isn’t Free Act (“FIFA”) will take effect. FIFA requires parties that retain “freelance workers” to provide any service where the contract between them has a value of $800 or more to reduce their agreement to a written contract.

FIFA defines a freelance worker as “any natural person or any organization composed of no more than one natural person, whether or not incorporated or employing a trade name, that is hired or retained as an independent contractor by a hiring party to provide services in exchange for compensation.” Importantly, the law does not cover organizations or more than one natural person.

The $800 threshold is reached either by itself or when aggregated with all contracts for services during the preceding 120 days.  The contract must include, at a minimum, the following information:

  • the name and address of both the hiring party and the freelance worker,
  • an itemized list of the services that will be provided and the value of those services,
  • the rate and method of compensation, and
  • the date on which payment is due or the mechanism by which such date will be determined.

If no payment due date is indicated in the contract, the hiring party must pay the freelance worker within 30 days of the completion of services.

A hiring party is also prohibited from threatening, intimidating, disciplining, harassing, denying a work opportunity, or discriminating against a freelance worker who exercises his or her rights under FIFA.

The law establishes penalties for violations of these rights, including statutory damages, double damages, injunctive relief, and attorney’s fees.

In anticipation of May 15, 2017, employers should ensure that contracts entered into with freelance workers (or existing contracts that are renewed) with a value of $800 or more comply with FIFA.

Paid Leave_shutterstock_371740363The state of Maryland appears poised to join seven other states and various local jurisdictions (including Montgomery County, Maryland) already requiring employers to provide paid sick and save leave. On April 5, 2017, the Maryland House of Delegates approved a bill previously passed by the Maryland Senate that would require most employers with at least 15 employees to provide up to five paid sick and safe leave days per year to their employees, and smaller employers to provide up to five unpaid sick and safe leave days. Although the bill contains an effective date of January 1, 2018, the actual effective date will depend on action by Governor Larry Hogan.

The following employees are not covered by the bill:

  • Employees who regularly work less than 12 hours a week;
  • Employees who are employed in the construction industry;
  • Employees who are covered by a collective-bargaining agreement that expressly waives the requirements of the law;
  • Certain “as-needed” employees in the health or human services industry.

Under the bill, an employer may not be required to allow an employee to:

(1) earn more than 40 hours of earned sick and safe leave in a year;
(2) use more than 64 hours of earned sick and safe leave in a year;
(3) accrue a total of more than 64 hours at any time;
(4) use earned sick and safe leave during the first 106 calendar days the employee works for the employer.

The bill also preempts local jurisdictions from enacting new sick and safe leave laws except for amending existing laws enacted before January 1, 2017, i.e. the existing law in Montgomery County.

The bill passed with enough support in both chambers to survive a promised veto by Governor Hogan, who favored an alternative that would require the benefit only for companies with at least 50 workers and make tax incentives available for smaller companies that offered the leave. However, if he still vetoes the bill, lawmakers will not have an opportunity to override the veto until next year’s legislative session beginning on January 10, 2018, which means the bill would not take effect until after January 1, 2018, and could possibly be subject to amendment in the next session.

*Marc-Joseph Gansah, a Law Clerk – Admission Pending in the firm’s New York office, contributed to the preparation of this blog post.

Retailers should note that the Department of Labor’s Wage and Hour Division (“DOL”) has just released a new Family Medical Leave Act (“FMLA”) poster and The Employer’s Guide to The Family and Medical Leave Act (“Guide”).

New FMLA Poster

The FMLA requires covered employers to display a copy of the General FMLA Notice prominently in a conspicuous place. The new poster is more reader-friendly and better organized than the previous one. The font is larger and the poster contains a QR code that will connect the reader directly to the DOL homepage. According to the DOL, however, the February 2013 version of the FMLA poster can continue to be used to fulfill the FMLA’s posting requirement.

The Employer’s Guide to The Family and Medical Leave Act

According to the DOL, the Guide is intended to provide employers with “essential information about the FMLA, including information about employers’ obligations under the law and the options available to employers in administering leave under the FMLA.” The Guide reviews issues in chronological order, beginning with a discussion of whether an employer is covered under the FMLA, all the way through an employee’s return to work after taking FMLA leave. The Guide includes helpful “Did You Know?” sections that shed light on some of the lesser-known provisions of the FMLA. The Guide also includes hyperlinks to the DOL website and visual aids to improve the reader’s experience. Overall the Guide helps navigating the complex FMLA process; however, it does not provide any guidance beyond the existing regulations.

The New York City’s Human Rights law (“NYCHRL”) prohibits employment discrimination against specified protected classes of employees and applicants including:

Employers Should Care About This: New York City’s Amendment on Caregiver Discrimination race, color, creed, age, national origin, alienage or citizenship status, gender, sexual orientation, disability, marital status, partnership status, any lawful source of income, status as a victim of domestic violence or status as a victim of sex offenses or stalking, whether children are, may be or would be residing with a person or conviction or arrest record.

If this list wasn’t long enough, on May 4, 2016, NYCHRL will add “caregivers” to the protected classes including, anyone who provides ongoing medical  or “daily living” care for a minor, any disabled relative or disabled non-relative who lives in the caregiver’s household.

The law defines “caregiver” as a person who provides direct and ongoing care for a minor child or a person with a disability who: (1) is a covered relative, or a person who resides in the caregiver’s household; and (2) relies on the caregiver for medical care or to meet the needs of daily living.

“Covered relatives” include children (adopted, biological or foster), spouses, domestic partners, parents, siblings, grandchildren, grandparents, children or parents of the caregiver’s spouse or domestic partner, or any individuals in a “familial relationship” with the caregiver.

The NYCHRL prohibits employers from discriminating against caregivers with respect to hiring, compensation, or the terms and conditions of employment. Thus, employers should not ask applicants about their status as a caregiver when making hiring decisions.

Importantly, employers may still (and should!) hold caregiver employees to the same attendance and performance standards as other employees.  Caregivers must still be able to perform the essential functions of their job, notwithstanding their role as a caregiver.

The law does not contain an affirmative requirement to accommodate caregivers, but employers should carefully consider any employee’s requests for time off due to caregiving responsibilities to ensure responses to such requests are being applied consistently and in accordance with any other potentially applicable laws. For example, caregiver employees may be eligible to take sick time under the New York City Earned Sick Time Act to fulfill caregiver duties for medical needs. In addition caregivers caring for medical needs may be entitled to Family and Medical Leave Act benefits.  Employers must also think about how their policies and practices affect caregivers and train managers on the new protections.

The New York Human Rights Commission has not yet issued formal guidance regarding this amendment. Until the Commission does so, the potential reach of the law remains unknown.  But employers should brace themselves for broad interpretations of this law and stay tuned to this blog for updates.