Scott has been practicing Labor & Employment law in New York for almost 20 years. He has represented over 400 employers and authored 100s of articles and presentations and wrote the book New York Management Law: The Practical Guide to Employment Law for Business Owners and Managers. Nothing on this blog can be considered legal advice. If you want legal advice, you need to retain an attorney.
New York State’s Freelance Isn’t Free Act took (FIFA) effect on August 28, 2024. As required by the Act, the New York State Department of Labor has developed a model freelancer contract. Although the model agreement meets the legal requirements, it has serious limitations. Accordingly, most hiring parties should consider modifying the model contract or drafting their own FIFA-compliant agreement.
Freelance Isn’t Free Act Overview
New York’s FIFA addresses non-employment relationships between a “hiring party” and a “freelance worker.” Under this law, only individuals and single-person organizations can qualify as a “freelance worker.”
When a hiring party engages a freelance worker, there must be a written contract between them.
By law, the contract must contain the following information:
Name and mailing address of both the hiring party and the freelance worker
Itemization of all services to be provided by the freelance worker
Value of the services to be provided
Rate and method of compensation
Date or mechanism of determining when payment will be made
Date by which a freelance worker must submit a list of services rendered to allow the hiring party to process timely payment
Hiring parties that don’t ensure there is a compliant contract in place risk various penalties. But the biggest risks aren’t just not having a written contract.
Purpose of the Freelance Isn’t Free Act
More than insisting on a written contract, FIFA is designed to give non-employees compensation protections similar to those of employees. Instead of typical breach of contract damages, FIFA allows freelancers to recover enhanced penalties as are available for unpaid wage claims. Consequently, hiring parties face significant liability risk when they don’t pay a freelancer in full and on time.
The DOL’s model freelancer contract contains 25 numbered sections. These include identification of the parties, compensation terms, and various provisions referring to the freelance worker’s rights under FIFA. It appears the latter content goes beyond what the law actually requires.
Such additional provisions include those with the following headers:
Prohibition Against Waiver
Prohibition Against Retaliation and Discrimination
Violations
The template also includes the following provisions that may not be desirable (at least as written) in all contexts:
Model Freelancer Contract Doesn’t Avoid Employment Relationship
By using the model freelancer contract as written, hiring parties would not only be telling freelancers how to pursue claims against them, but may also unwittingly jeopardize the independent contractor nature of the relationship.
The model contract states that “Nothing in this Agreement shall indicate the Freelance Worker is a partner, agent, or employee of the Hiring Party.” But it doesn’t specifically acknowledge that the freelancer is not an employee! Plus, the check-box, fill-in-the-blank format of other sections could result in terms that may support an employment classification.
Remember, a hiring party and worker can’t simply decide whether they have an employment relationship or not. That is always a question that could be determined by a court or government agency for various purposes after the fact. And the laws often operate on the assumption of an employment relationship (with the attendant legal consequences). Typically, the burden is on the hiring party to demonstrate that no employment exists, regardless of what the worker intended when entering into the arrangement.
Other aspects of the template agreement could also unwittingly support an employment arrangement. For example, providing an hourly pay rate and certain insurance coverages may be more typical for employees.
Better Approaches to FIFA Compliance
Ultimately, using the DOL’s model freelancer contract is probably better than not satisfying the obligation to put the terms of a freelance engagement in writing. However, hiring parties should strongly consider preparing their own agreements (with appropriate legal advice). It’s probably fair to say the DOL’s template is designed to favor freelancers. Even if not, the one-size-fits-all approach is likely to lead to problems down the road for some hiring parties.
Remember, the Freelance Isn’t Free Act and other related employment/independent contractor provisions are intended to protect workers. Any ambiguity will be resolved to their benefit. Thus, it’s critical to be intentional and cautious in drafting your independent contractor agreements (whether subject to FIFA or not).
On August 20, 2024, the U.S. District Court for the Northern District of Texas enjoined the Federal Trade Commission’s (FTC) proposed non-compete ban. The decision, issued by U.S. District Court Judge Ada E. Brown, sets aside the FTC’s Non-Compete Rule. So, the FTC cannot attempt to enforce the rule when it is scheduled to take effect on September 4, 2024.
The case is captioned as Ryan LLC (Plaintiff) and Chamber of Commerce of the United States of America, Business Roundtable, Texas Association of Business, and Longview Chamber of Commerce (Plaintiff-Intervenors) v. Federal Trade Commission, Civil Action No. 3:24-CV-00986-E.
Basis for Injunction
Judge Brown found two legal deficiencies in the promulgation of the FTC’s non-compete rule.
Exceeding Statutory Authority
The court found that the FTC exceeded its statutory authority under the Federal Trade Commission Act (FTC Act). The ruling emphasized that the FTC does not have the power to issue substantive rules that broadly prohibit non-compete agreements across all industries and employment levels. The FTC’s authority to prevent unfair methods of competition does not extend to the creation of sweeping, substantive regulations such as this Non-Compete Rule.
Arbitrary and Capricious Action
The court also determined that the FTC’s rule was arbitrary and capricious. The ruling criticized the FTC for imposing a one-size-fits-all ban on non-compete agreements without adequately considering less restrictive alternatives or providing a rational basis for the rule. Plus, the FTC’s reliance on certain studies was insufficient to justify such a broad prohibition. The judge noted that no state had enacted a rule as far-reaching as the FTC’s proposed regulation.
According to Judge Brown, “In sum, the Rule is based on inconsistent and flawed empirical evidence, fails to consider the positive benefits of non-compete agreements, and disregards the substantial body of evidence supporting these agreements.”
Status Quo Preserved
With the proposed non-compete ban blocked, employers may continue using non-competes to the extent allowed under applicable state law. Note that some states, such as California, already largely prohibit the enforcement of non-compete clauses.
While this ruling halts the FTC’s current efforts, it does not entirely close the door on federal regulation of non-competes. The FTC may attempt to appeal the decision (though the relevant appellate courts are not expected to reach a different conclusion). Alternatively, the FTC may revise its approach with a more limited non-compete ban. Some individual state legislatures will probably revisit potential non-compete bans as well.
Performance reviews are a cornerstone of effective employee management. They provide a structured opportunity for managers and employees to discuss achievements, address challenges, and set future goals. When conducted effectively, performance reviews can drive employee development, enhance productivity, and strengthen the overall organizational culture. However, to achieve these benefits, it’s crucial to approach performance reviews with a clear strategy and a commitment to fairness and transparency.
Whether you are refining an existing performance review process or establishing a new one, this guide offers practical insights and actionable steps to ensure your reviews are effective, fair, and supportive of your organization’s goals. Plus, you’ll be in a better position to justify promotional and disciplinary decisions and defend against employee discrimination claims.
Structuring and Scheduling Performance Reviews
Conducting effective performance reviews requires careful planning and structuring to ensure a fair, comprehensive, and productive process. Here’s how to structure and schedule your performance reviews for maximum impact:
Frequency of Reviews
Annual vs. Semi-Annual vs. Quarterly Reviews
Annual Reviews: These are traditional and often align with the fiscal year. They provide a comprehensive overview of an employee’s performance over the year but can be overwhelming if not managed properly.
Semi-Annual Reviews: Conducting reviews twice a year helps in providing more timely feedback and adjustments. This frequency allows for mid-year corrections and better alignment with business goals.
Quarterly Reviews: More frequent reviews ensure continuous feedback and quicker adjustments. This approach can be particularly beneficial in fast-paced environments where roles and expectations evolve rapidly.
Pros and Cons of Review Frequencies
Annual Reviews: Pro – Comprehensive analysis; Con – Delayed feedback.
Semi-Annual Reviews: Pro – Timely feedback; Con – Requires more managerial time.
Quarterly Reviews: Pro – Continuous feedback; Con – Can be time-consuming and potentially overwhelming for both managers and employees.
Preparing for the Review
Gathering Performance Data and Feedback
Collect data from various sources, including self-assessments, peer reviews, customer feedback, and performance metrics.
Ensure that the data is accurate, up-to-date, and relevant to the employee’s role and responsibilities.
Reviewing Job Descriptions and Performance Standards
Revisit the employee’s job description to ensure clarity about their responsibilities.
Compare the employee’s performance against predefined performance standards and goals.
Setting the Agenda and Objectives for the Review Meeting
Define clear objectives for the review meeting. This might include discussing accomplishments, identifying areas for improvement, and setting future goals.
Prepare an agenda that outlines the key points to be discussed, ensuring a structured and focused conversation.
Scheduling the Review
Choosing an Appropriate Time and Setting
Schedule the review at a time that is convenient for both the manager and the employee, avoiding busy or high-stress periods.
Select a private and comfortable setting to ensure an open and honest discussion without interruptions.
Providing Advance Notice to the Employee
Give the employee sufficient notice of the review meeting, typically at least one to two weeks in advance.
Encourage the employee to prepare for the review by reflecting on their performance, achievements, and any challenges they have faced.
By carefully structuring and scheduling performance reviews, you can create a more effective and meaningful process that supports employee development and enhances overall organizational performance. Ensuring that the reviews are regular, well-prepared, and thoughtfully conducted will lead to better outcomes and a more engaged workforce.
Providing Constructive Feedback and Setting Goals
The heart of any performance review lies in the feedback provided and the goals set for future development. Constructive feedback helps employees understand their strengths and areas for improvement, while clear goals provide a roadmap for their growth and success. Here’s how to effectively provide feedback and set goals during performance reviews:
Techniques for Delivering Feedback
Using the “SBI” (Situation-Behavior-Impact) Model
Situation: Describe the specific situation in which the behavior occurred. Be clear and concise about when and where the incident took place.
Example: “During the team meeting last Thursday . . .”
Behavior: Focus on the actual behavior observed, avoiding generalizations and personal judgments.
Example: “you interrupted several colleagues while they were speaking . . .”
Impact: Explain the impact of the behavior on the team, project, or organization.
Example: “which disrupted the flow of the meeting and made it difficult for others to contribute.”
Balancing Positive and Negative Feedback
Start with positive feedback to acknowledge the employee’s achievements and strengths.
Example: “You’ve done an excellent job managing the new client accounts, and your attention to detail is impressive.”
Follow with constructive feedback on areas that need improvement.
Example: “However, there have been instances where project deadlines were missed, and we need to work on improving time management.”
Avoiding Common Pitfalls
Generalizations: Avoid vague statements like “You always” or “You never”. Be specific and focus on particular instances.
Personal Attacks: Critique behaviors, not the person. Ensure that feedback is objective and non-personal.
Overloading: Limit the amount of feedback to a few key points to avoid overwhelming the employee.
Creating an Open Dialogue
Encouraging Employee Self-Assessment and Input
Ask the employee to self-assess their performance before the review. This helps in aligning perspectives and identifying areas of agreement or discrepancy.
Example: “How do you feel you performed on the recent project?”
Asking Open-Ended Questions
Use open-ended questions to understand the employee’s viewpoint and encourage a two-way conversation.
Example: “What challenges did you face during the last quarter?”
Addressing Concerns and Challenges
Listen actively to the employee’s concerns and challenges. Show empathy and provide support where possible.
Example: “I understand that balancing multiple projects can be challenging. How can we better support you in managing your workload?”
Example: “Increase sales by 10% in the next quarter.”
Measurable: Ensure that progress can be tracked and measured.
Example: “Conduct weekly sales reviews to monitor progress.”
Achievable: Set realistic goals that are within the employee’s capacity.
Example: “Given your current workload, focus on the top three priority clients.”
Relevant: Align goals with the employee’s role and the organization’s objectives.
Example: “Enhance your presentation skills to improve client pitches.”
Time-bound: Set deadlines for achieving the goals.
Example: “Complete the sales training course by the end of the month.”
Aligning Individual Goals with Organizational Objectives
Ensure that the goals support broader company objectives and contribute to overall business success.
Example: “Your goal to enhance client engagement aligns with our strategy to increase customer retention.”
Establishing Clear Action Plans and Timelines
Outline specific actions and timelines for achieving the goals.
Example: “Attend a sales training workshop next month and apply new techniques in client meetings starting immediately after.”
By providing constructive feedback and setting SMART goals, you create a structured and supportive environment for employee development. This approach not only clarifies expectations but also motivates employees to achieve their best, contributing to both their personal growth and the success of the organization.
Legal Considerations and Avoiding Discrimination Claims
Ensuring that your employee performance reviews are legally compliant is critical to protecting your organization from potential legal claims and fostering a fair workplace. Here are some detailed considerations and best practices to help you navigate the complexities of legal compliance in performance reviews:
Consistency and Fairness
Standardized Evaluation Criteria
Develop clear, objective criteria for evaluating performance.
These criteria should be uniformly applied to all employees in similar roles to avoid claims of bias or discrimination.
Regular and Documented Reviews
Conduct performance reviews on a regular schedule (e.g., annually, semi-annually, or quarterly) and document each review thoroughly. This documentation should include the date of the review, the participants, the topics discussed, and any agreed-upon goals or action plans.
Use a standardized performance review form to ensure that all reviews cover the same key areas and are documented in a consistent manner.
Avoiding Discrimination Claims
Objective and Evidence-Based Assessments
Base performance evaluations on factual, job-related criteria rather than subjective opinions. Utilize measurable data and specific examples to support your assessments.
Avoid making assumptions or comments that could be perceived as discriminatory.
Example: Instead of saying “You are not a team player,” provide specific instances where the employee did not collaborate effectively, such as missing team meetings or failing to communicate project updates.
Recognizing and Mitigating Unconscious Biases
Provide training to managers and supervisors on recognizing and mitigating unconscious biases.
Use diverse review panels to provide multiple perspectives and reduce the impact of individual biases. Where practical, try to include managers from different departments in performance review discussions.
Understanding Employment Laws
Stay informed about relevant federal, state, and local employment laws that impact performance reviews.
Be sure that reviewers are aware of laws prohibiting discrimination in employment on the basis of race, gender, disability, age, religion, and other protected characteristics.
Comply with Americans with Disabilities Act (ADA) requirements, which may necessitate reasonable accommodations for employees with disabilities during the performance review process.
Confidentiality and Record Keeping
Maintain the confidentiality of performance review discussions and documentation.
Ensure that records are securely stored and only accessible to authorized personnel.
Dispute Resolution Process
Establish a formal process for employees to dispute their performance reviews if they believe the evaluation is unfair or inaccurate.
Communicate the process clearly to all employees.
Legal Counsel Involvement
In cases where performance reviews lead to significant employment actions (e.g., termination, demotion), consider involving legal counsel to ensure that all actions are legally sound and well-documented.
Before terminating an employee based on poor performance, consult with legal counsel to review the documentation and ensure compliance with employment laws.
By incorporating these detailed legal compliance strategies into your performance review process, you can create a fair, transparent, and legally sound framework that benefits both your employees and your organization.
Continuous Improvement and Follow-Up
Performance reviews should not be viewed as a one-time event but as part of an ongoing process of continuous improvement and development. Regular follow-up and support are essential to ensure that the feedback and goals discussed during the review lead to meaningful progress. Here’s how to maintain momentum and foster continuous improvement:
Monitoring Progress
Regular Check-Ins and Ongoing Feedback
Scheduled Check-Ins: Schedule regular follow-up meetings to discuss progress on goals and provide ongoing feedback.
Informal Feedback: Encourage managers to provide informal feedback consistently, outside of scheduled meetings.
Adjusting Goals and Plans as Needed
Flexibility: Be prepared to adjust goals and action plans based on the employee’s progress and any changes in their role or the organization’s needs.
Continuous Alignment: Ensure that the employee’s goals remain aligned with organizational objectives and priorities.
Providing Resources and Support
Identifying and Addressing Training and Development Needs
Skills Assessment: Identify any skills gaps or areas where the employee needs additional training or development. Use assessments or feedback from the review to pinpoint specific skills to improve.
Training Programs: Provide access to relevant training programs, workshops, or courses that can help the employee develop these skills.
Offering Coaching and Mentoring Opportunities
Coaching: Pair employees with experienced coaches (e.g., more senior team member) who can provide personalized guidance and support.
Mentoring Programs: Establish formal mentoring programs to foster long-term development and career growth.
Documenting and Tracking
Keeping Detailed Records of Performance Discussions and Agreements
Documentation: Maintain comprehensive records of all performance review discussions, agreements, and follow-up meetings. Document the specific feedback provided, goals set, and any agreed-upon action plans.
Accessibility: Ensure that these records are accessible to both managers and employees for reference and review.
Using Performance Management Software to Track Progress and Updates
Software Tools: Implement performance management software to streamline the tracking of goals, feedback, and progress.
Data Analytics: Utilize analytics to identify trends, measure the effectiveness of development plans, and make data-driven decisions.
By focusing on continuous improvement and regular follow-up, you ensure that performance reviews lead to real development and growth. This ongoing process helps employees stay engaged and motivated, fosters a culture of continuous learning, and ultimately contributes to the success and resilience of the organization.
Summary
Conducting effective performance reviews is a multifaceted process that requires careful planning, clear communication, and a commitment to continuous improvement. By structuring and scheduling reviews thoughtfully, providing constructive feedback, adhering to legal requirements, and ensuring ongoing follow-up, employers can create a supportive environment that promotes both individual and organizational growth.
Implementing the best practices outlined in this guide can help transform performance reviews into meaningful, productive conversations that drive employee success. At the same time, you position your organization well to make beneficial personnel changes without undue legal risk. By fostering an open, fair, and transparent review process, you not only enhance employee satisfaction and retention but also build a stronger, more resilient organization.
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