Tag Archives: New York City

04.24.23
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Rat czar? “Bloodthirsty” NYC Has Special Rules for Retaining Independent Contractors

Kathleen Corradi has been an educator, a land use and sustainability expert and — now — New York City’s first Rat Czar.

The word czar derives from the Latin Caesar and had been used by the Russians to describe their emperor from the 1500s until the 1917 February Revolution, which led to Czar Nicholas II’s unemployment (and, not to bury the lede, the subsequent imprisonment and murder of the former czar, his family and staff).

But Ms. Corradi does not seek to be emperor of the rats. She seeks to eradicate them. Hell of a thing for an emperor to do, don’t you think?

NYC advertised the position with a bit of whimsy, seeking someone “bloodthirsty” with a “general aura of bassassery.”

NYC exercises considerably less whimsy, however, when dealing with independent contractors in its midst.

In most jurisdictions, independent contractors receive none of the protections of employees. NYC, however, imposes some additional burdens on businesses retaining contractors. Here are four things that New Yorkers retaining independent contractors should know:

1. NYC independent contractors are protected against discrimination and harassment under the NYC Human Rights Law.

2. NYC businesses with 15 or more workers must provide annual sexual harassment training to independent contractors, if the contractors (a) work for that business more than 80 hours in a calendar year, and (b) perform on at least 90 days, which don’t have to be consecutive.

3. NYC’s Freelance Isn’t Free Act requires written contracts with freelancers who provide services worth $800 or more, and the contracts must include specified information. This law applies to individuals retaining contractors, not just businesses.

4. NYC rideshare drivers must receive at least a specified minimum wage.

Now that’s some badasserry. (Rats!)

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© 2023 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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01.03.23
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Hands Off! NY Governor Vetoes Independent Contractor Bill

A chess-playing robot took enforcement a bit too seriously at a recent tournament in Moscow. Facing a 9-year old human opponent, the robot grabbed and broke the boy’s index finger when the boy reached toward the board when it was the robot’s turn to move. When you’re a robot, rules are rules.

The robot had been in use for 15 years (and the boy had been in use only 9). Neither robot nor boy had any known history of delinquency, but this sounds like a textbook case of bullying. And there’s video!

In an unrelated matter, New York Governor Kathy Hochul was not going to be bullied by the state legislature into signing a recently passed bill that would have imposed new requirements on the use of individual independent contractors.

Hochul vetoed the proposed Freelance Isn’t Free Act on the grounds that it imposed inappropriate burdens on the NY State Department of Labor. In her veto statement, she wrote that the state DOL “could not implement the legislation effectively” because it required the DOL to oversee private contracts between businesses and non-employees. That’s well outside the DOL’s mission of enforcing labor protections for employees.

The law would have required written contracts with individual freelancers, with various types of mandatory disclosures in each contract.

The proposed law was a statewide version of New York City’s Freelance Isn’t Free Act, which NYC enacted in 2016. A summary of the NYC law is here. In 2017, the NYC Department of Consumer Affairs published an additional set of rules implementing the act and adding new restrictions that were not in the original law.

Because the 2022 legislative session has ended, the NY state assembly cannot override her veto, but the bill could be reintroduced in 2023.

If the assembly wants to try again, it might try another version that does not involve the DOL, since this is not a misclassification bill and is not a matter between employers and employees. For the bill to be effective, it would need a suitable yet aggressive enforcer of the new rules.

I know of a chess-playing robot in Moscow that might be available.

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© 2023 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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02.10.20
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If I Told You Once, I Told You 55,000 Times! These NYC Employment Laws Now Apply to Contractors

NYCHRL independent contractors 8-107(23)A Twinsburg, Ohio man received a statement in the mail for his daughter’s student loan. And then another. And another. And another. The lender sent him 55,000 identical letters filling 79 bins at the post office.

Even better, all of the statements were wrong. They provided an incorrect payment amount.

A recent change to New York City’s Human Rights Law (NYCHRL) doesn’t need to be explained 55,000 times. But it does need to be explained once. Correctly.

Effective January 11, 2020, the protections under the NYCHRL now apply to independent contractors, including freelancers. That means, under NYC law:

  • It is now unlawful to discriminate, harass, or retaliate against an independent contractor, based on any protected class;
  • Businesses must provide reasonable accommodations, including for needs related to pregnancy, lactation, religious observances, sexual offenses, or stalking;
  • Businesses must engage in a “cooperative dialogue” with any contractor seeking an accommodation and must provide a written determination of any accommodation that was granted or denied;
  • Businesses must follow the Fair Chance Act requirements before taking any adverse action based on the results of a criminal background check, including providing a written Artcile 23-A analysis;
  • Businesses cannot inquire about salary history;
  • Businesses cannot perform a credit check (maybe; this is unclear); and
  • Businesses may need to provide sexual harassment training to contractors, depending on the number of hours worked.

For those keeping score at home, the change is to Section 8-107(23) of the NYCHRL. This one little sentence does all the work: “The protections of this chapter relating to employees apply to interns, freelancers and independent contractors.” Boom!

The law applies to businesses in New York City that had four or more workers, including independent contractors, at any time in the previous 12 months.

The law does not apply to wage and hour issues like minimum wage and overtime payments, and the law does not change the test for determining whether someone is an independent contractor or an employee.

The Commission has published some additional guidance on how this will work, especially the sexual harassment training part. You can read it online. Thankfully, the Commission didn’t send it 55,000 times to every business in the mail.

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© 2020 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

Need training on avoiding independent contractor misclassification claims? Hey, I do that!  

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02.14.19
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Are Independent Contractor Drivers Entitled to a Minimum Wage? NYC Changes the Rules.

New york city rise share drivers minimum wage

Normally, independent contractors are not subject to minimum wage requirements, since those laws (such as the Fair Labor Standards Act) apply only to employees. Lots of litigation focuses on whether contractor drivers should, in fact, be classified as employees and therefore subject to minimum wage and overtime rules, but if the drivers are properly classified as independent contractors, minimum wage requirements typically do not apply.

But under a new rule in New York City, ride share drivers are now entitled to a minimum wage in excess of $15 per hour, despite being independent contractors.

Continue reading →

11.15.18
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NYC May Expand Anti-Discrimination Law to Cover Contractors, Interns

NYC anti discrimination gapI will admit, without shame, that in the 1980s, I loved the Gap Band. Songs like “You Dropped a Bomb on Me” and “Burn Rubber on Me” were just plain fun to listen to. Tip: Try it!

The band’s name didn’t refer to any actual gap — the name comes from the first letters of streets in Tulsa, Oklahoma — but I do know there are many gaps in anti-discrimination law, leaving some types of workers without adequate protection.  

The federal laws that prohibit discrimination in employment, like many (but not all) state laws, protect only employees. That leaves a gap. Independent contractors and interns who have been discriminated against may have no recourse.

The New York City Council is trying to close that gap.

In the same bill we excoriated on Monday for unfairly attacking the franchise model, the New York City Council also proposes to expand the protections of the City’s anti-discrimination law (section 8-107 of the Administrative Code) to protect independent contractors and interns, not just employees. 

Closing that gap makes sense. Hopefully this bill will be amended to keep the parts that expand anti-discrimination protection to non-employee workers (a good idea), while removing the parts that would expand liability to companies not responsible for the discrimination (a bad one).

© 2018 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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11.12.18
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NYC to Franchisors: We’re Going “Crazy on You”!

Barracuda NYCIn 1976, the band Heart released the album Dreamboat Annie. Soon after its release, the label (Mushroom Records) released a suggestive National Enquirer-style ad suggesting that sister Ann and Nancy Wilson might also be lesbian lovers. Ann’s outrage led her to write the song “Barracuda,” about ambush and false accusations.

A different Heart song title came to mind as I read the latest attempt by the New York City Council to hold franchisors responsible for acts they did not commit. 

A bill co-sponsored by 19 council members would amend the City’s anti-discrimination law to hold franchisors strictly liable for discriminatory acts by their franchisee. We have seen many attempts to expand the definition of “joint employer” to include franchisors, but this proposal goes beyond anything we’ve seen. This bill doesn’t even deal with the concept of “joint employment.” It just says that franchisors are liable for discriminatory acts of their franchisees, without any analysis of their involvement in the discriminatory acts or their level of control over the franchisee. It’s automatic.

That’s crazy. Holding one company strictly liable for the wrongful acts of another raises all sorts of legal concerns and, if passed, the bill will certainly be challenged in court.

Franchisors, the Council wants to go “Crazy on You.”

Now, truth be told, in the Heart song, going “Crazy on You” has a very different meaning than I intend it here. Ann Wilson and Roger Fisher (her bandmate, co-writer, and lover) meant it in an amorous way, but there is certainly no love between NYC and franchisors. The attacks by NYC on the franchisor-franchisee relationship are more like those of the sharp-toothed predator of the sea, the Barracuda.

© 2018 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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08.13.18
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NYC to Cap Number of Uber, Lyft Drivers

Traffic uber lyft NYC law suspect TLC license

In the Jimi Hendrix song, Crosstown Traffic, Jimi plays a nifty little riff with a makeshift kazoo constructed from a comb and tissue paper. The lyrics compare trying to get through to his lady friend with trying to get through Manhattan’s cross-town traffic, which was already bad in 1967. (Thanks Wikipedia!)

News Alert: New York City Has Bad Traffic!

So whose fault is that?

In a gut punch to the gig economy, New York City just passed an ordinance that will place a one-year ban on granting new licenses for ride hailing vehicles.

To drive using Uber or Lyft in NYC, you need a license from the Taxi and Limousine Commission (a different kind of TLC). During this one-year suspension period, the city will conduct a study on traffic and congestion and will examine driver compensation.

According to this Wall Street Journal article and nifty graph, since the emergence of Uber and Lyft as ride-share options, the value of NYC taxi medallions has plummetted from about $1 million to roughly $200,000; and since 2015, the number of TLC-licensed drivers (cabs and ride-sharing services) has more than doubled. The City points to increased congestion as the reason to suspend the issuance of new TLC licenses for a year.

The ride-share companies argue that the cap will limit the number of available drivers in outer boroughs, increasing New Yorkers’ wait times.

Is the City’s motivation really to address traffic congestion? Or is the idea instead intended to help the struggling taxi industry? Hmmmm.

Under the new law, licenses that have already been granted are not being taken away.

In case you were interested (or even if you are not), here are the general requirements for obtaining a license from TLC if you want to drive. [Uber, Lyft]

But for the next 12 months, the application process will be “just like crosstown traffic,
So hard to get through to you.”

© 2018 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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