Author: Scott Horton

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.

March 28, 2024

New York’s Freelance Isn’t Free Act (Amended)

On November 22, 2023, New York Governor Kathy Hochul signed the “Freelance Isn’t Free Act.” She had previously vetoed the same legislation in 2022. The new law will affect most independent contractor relationships, at least requiring written contracts.

The New York Freelance Isn’t Free Act was originally scheduled to apply to contracts entered into on or after May 20, 2024. However, the law was amended on March 1, 2024, with a new effective date of August 28, 2024. Originally placed in the New York Labor Law, the Freelance Isn’t Free Act has been moved to Section 1415 of the General Business Law.

Note: New York City’s Freelance Isn’t Free Act took effect on May 15, 2017. This new state law will expand similar rights and restrictions statewide.

Freelance Workers

The law applies to a broad range of freelancers, such as writers, editors, graphic designers, consultants, and others in the gig economy.

“Freelance worker” is defined to mean:

any natural person or 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 an amount equal to or greater than $800, either by itself or when aggregated with all contracts for services between the same hiring party and freelance worker during the immediately preceding 120 days.

However, the following categories are excluded from coverage:

Sales representatives, as defined in New York Labor Law Section 191-a
Lawyers legally practicing law
Licensed medical professionals
Construction contractors

Hiring Parties

The term “hiring party” is used under the Freelance Isn’t Free Act instead of “employer,” since the law targets independent contractors rather than employees.

“Hiring party” is defined broadly as “any person who retains a freelance worker to provide any service,” except for a government entity. Accordingly, the law does not apply to public employers.

It applies to “freelance workers,” defined as individuals or single-person organizations hired as independent contractors for services worth $800 or more. The law includes a broad range of freelancers, such as writers, editors, graphic designers, consultants, and others in the gig economy.

Freelancer Contract Requirements

The Freelance Isn’t Free Act mandates that contracts between freelance workers and hiring parties be in writing. The hiring party must provide a copy of the contract to the freelancer either physically or electronically.

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

The New York Commissioner of Labor must provide model contracts on the Department of Labor’s website.

A freelancer can assert a violation of the Act if the hiring party did not provide a written contract upon request made before the work began. If the freelancer did not request a contract upfront, the hiring party would still be at risk of evidentiary presumptions in the freelancer’s favor if there is no written contract.

Payment

Under the Act, payment must be made either by the date specified in the contract or, if not specified, within 30 days of completing the freelance worker’s services. The law prohibits hiring parties from demanding that freelancers accept less compensation than contracted as a condition of timely payment.

Protections Against Retaliation and Legal Recourse

Hiring parties that pay late, or don’t pay at all, can be penalized with double damages.

Freelancers are also protected from retaliation for exercising their rights under the Act. Hiring parties cannot deny work opportunities or future work as a form of retaliation. Each violation may result in statutory damages equal to the contract value.

Freelancers can bring civil actions for damages, including attorney’s fees and costs. They have up to 6 years to assert nonpayment or retaliation claims.

Administrative penalties of up to $25,000 may be imposed if a hiring party has been found to have engaged in a pattern or practice of violating the Freelance Isn’t Free Act.

In addition to private lawsuits, the NYS Attorney General may pursue legal claims against hiring parties. (The original legislation provided for the Department of Labor to have administrative jurisdiction over violations of the Freelance Isn’t Free Act. However, Governor Hochul objected that this would impose too much of a burden on the DOL’s resources.)

Implications for Employers and Freelancers

The Freelance Isn’t Free Act signals a shift toward more protections for independent contractors in New York, but also places significant new burdens on hiring parties. It emphasizes the importance of clear, written contracts and timely payment practices. However, the restrictive nature of the law could result in unintended consequences, such as companies opting to work with freelancers outside of New York where possible. If your organization uses independent contractors, you should review such arrangements before the new law takes effect.

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March 14, 2024

New York Law Limits Employer Access of Employee Social Media Accounts

As of March 12, 2024, New York state law protects employees from having their employers access their social media. The protections of employee social media accounts are not absolute. There are parameters and exceptions. Employers should familiarize themselves with the new restrictions.

Personal Employee Social Media Accounts

The law protects employees’ “personal accounts”. This term is defined to mean “an account or profile on an electronic medium where users may create, share, and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, instant messages, or internet website profiles or locations that is used by an employee or an applicant exclusively for personal purposes.”

Request for Access Prohibited

The new Section 201-i of the New York Labor Law prohibits employers from requesting, requiring, or coercing any employee or applicant to do any of the following regarding personal social media accounts:

Disclose any password or other authentication information;
Access their personal account in the employer’s presence;
Reproduce any photographs, video, or other information contained in a personal account that was accessed through the above prohibited means.

Employers cannot discipline or penalize employees who refuse to provide any of the above information. Similarly, they cannot refuse to hire an applicant on that basis.

Permitted Access

The rules are different for work accounts. Employers may require employees to provide usernames and passwords for “accessing nonpersonal accounts that provide access to the employer’s internal computer or information systems.”

There are several additional exceptions for accounts and devices used for business purposes. For example, employee access to certain websites may be restricted while using company equipment. However, the employer must provide prior notice and the employee must agree to the restriction. Yet, as an “exception” to the general prohibitions, it’s not clear that the law actually imposes an affirmative obligation for employers to obtain such permission as a general matter.

The law also does not prevent management from connecting with employees through social media or viewing information that is voluntarily shared or publicly available through the social media platform.

Workplace Impact

Similar legislation was first introduced in the early days of social media well over a decade ago. In that sense, it is surprising New York has waited this long to get into the game. However, most employers have long since abandoned the types of measures that would be most likely to violate the new prohibitions. Nonetheless, it is important that you understand that there are now express parameters regarding employee personal social media accounts in New York.

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February 29, 2024

OSHA High-Hazard Industry Reporting Requirements

The Occupational Safety and Health Administration (OSHA) has updated its reporting rules for businesses in high-hazard industries. The new OSHA high-hazard industry regulations took effect January 1, 2024, with an annual reporting deadline of March 2.

New Rule

The updated regulations require certain employers to submit more comprehensive injury and illness data to OSHA. This requirement is not entirely new. However, the scope and depth of the information now required is more extensive than previous mandates.

Establishments with 100 or more employees in certain “high-hazard” industries must submit detailed reports from their Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report) annually. These submissions are in addition to the already required Form 300A (Summary of Work-Related Injuries and Illnesses).

The forms and additional filing information are available here.

OSHA’s Objectives

The rationale behind the enhanced reporting requirement is multifaceted. First, it aims to arm OSHA with the data necessary to identify workplace hazards more effectively and implement strategies to mitigate them. Second, by making some of this data publicly available, OSHA intends to encourage employers to improve workplace safety proactively, knowing that their injury and illness records may be subject to public scrutiny.

Industries in Focus

The rule targets so-called “high-hazard industries”. This broad category includes many aspects of agriculture, healthcare, manufacturing, construction, and entertainment, among other industries.

Click here for a complete list of affected industries, by NAICS codes.

Again, the changes only affect establishments in the designated businesses with 100 or more employees.

OSHA retained pre-existing rules regarding electronic submission of information from Form 300A from establishments with 20-249 employees in certain high-hazard industries and from establishments with 250 or more employees in industries that must routinely keep OSHA injury and illness records.

Strategic Compliance

For employers subject to this rule, the path to compliance involves several key steps. First, it’s crucial to understand whether your business falls within the scope of the relevant “high-hazard” classification. From there, ensuring that your record-keeping practices are up to the task will be vital. This means not only accurately documenting work-related injuries and illnesses but also being prepared to submit this data in the format and timeframe OSHA requires.

Additionally, employers should view this regulation not just as a compliance challenge but as an opportunity to reassess and strengthen their overall approach to workplace safety. Implementing robust safety protocols and fostering a culture of transparency and accountability can help reduce the risk of injuries and illnesses in the first place.

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