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More Protections for New York City's Independent Contractors

On this page, we have previously blogged about New York City’s Freelance Isn’t Free Act (FIFA) (Local Law 140 of 2016) that went into effect on May 15, 2017. In a nutshell, FIFA protects freelancers in that they have the right to a written contract, and they have a right to be paid on time and in full. In addition, FIFA bars wage theft and retaliation against freelancers, and provides for the imposition of penalties on businesses that are found not to comply with its requirements.

As part of FIFA’s implementation, the New York Department of Consumer Affairs (which is the agency that enforces FIFA), has issued rules clarifying FIFA’s provisions, as follows:

• Clarify that FIFA applies without regard to the immigration status of freelancers.

• Define “adverse action,” for purposes of the FIFA’s anti-retaliation clause, broadly to mean any action by a hiring party that would constitute a threat, intimidation, discipline, harassment, denial of a work opportunity, or discrimination, or any other act that penalizes or is reasonably likely to deter a freelancer from exercising any right guaranteed FIFA.

• Clarify that retaliation under FIFA may be established by showing the freelancer’s attempt to exercise his/her rights under FIFA was a “motivating factor” for a subsequent adverse action, even if other factors also motivated the adverse action. This means that a “but for” causation standard, which typically applies to federal law retaliation claims, does not apply under FIFA.

• Prevent employers from requesting that freelancers sign collective/class action waivers in their contracts.

• Prevent employers from incorporating clauses in contracts with freelancers that attempt to waive or limit procedural rights afforded to a party in a civil or administrative action.

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