Freelancers, Consultants and Independent Contractors
You are a Freelancer - an independent contractor, a consultant. In the gig economy, employers want to avoid the legal restrictions of actually hiring employees, putting them on the payroll, and subjecting themselves to applicable laws, such as wage and hour, discrimination, health benefits and pension benefits. Or maybe you like being your own person, and running your own personal business.
In the past, generally, as a Freelancer, consultant or independent contractor, you had very limited rights – up to now. The situation is different in New York City.
Discrimination. Under the New York City Human Rights Law, a Freelancer has the same benefits as an employee, as long as you don’t yourself have employees!
Wages and Payments. On May 15, 2017, the Freelance Isn’t Free Act went into effect in New York City. This act deals with wage issues, and provides Freelancers, consultants and independent contractors remedies similar to the wage and hour laws that apply to employees.Are you covered?
Most workers are covered. However, if you are a lawyer, a sales representative, or a licensed medical professional, you are out of luck, at least under the Freelance Isn’t Free Act. You are also out of luck if the government is the hiring party.Do you get a written contract?
Yes. The hiring party, which would be any individual or business, has to give you a contract if you are going to do more than $800 in work within a 120 days period. The contract must describe the work you will do, the pay you will get, and the date you will get paid.
What if the contract does not state the date you will be paid? In that case, the hiring party must pay you within 30 days of the date that you complete the work.Do you need to worry about retaliation?
What if the hiring party retaliates against you because you assert your Freelance rights?
In that case, you would have a claim for retaliation, similar to retaliation laws that have applied to employees for years. Retaliation might include attempts to deter you by refusing to give you more work or threatening to take baseless actions against you. Favorably to you, the retaliation provisions are pretty broad, and include any conduct which is reasonably likely to deter you from asserting your Freelance rights; or from obtaining other work – they can’t call up another hiring party who you might be working for or want to work for to try to blacklist you.What would be the evidence that you would need for retaliation?
The Freelance Act tells us that you are not limited to “direct evidence” – the hiring party who tells you that they are taking action to punish you for asserting your rights. It could also be inferred from the timing of an adverse action – how much time elapsed between your attempt to assert your rights and the adverse actions. Plus, if the hiring party makes some excuse for an adverse action, you would still have a retaliation claim if you could show that the adverse action was one (if not the only) motivating factor – this broad-based standard in the Freelance Act would help your retaliation claim.Who is liable for retaliation?
In addition, a person who is not a party to your contract that retaliates against you because you try to assert your rights under the Freelance Act, that person could be liable as well. Example: the hiring party tells a friend or business associate not to hire you – that person could also be liable for retaliation.How much time do you have to sue?
You always have to be aware of the statute of limitations – when your claim becomes stale and you can’t go to court. If the hiring party does not give you a proper contract, the limitations period is 2 years. If the hiring party does not pay you properly or retaliates against you, the limitations period is 3 years.What can you recover?
If they don’t pay you, you get the value of the payments, naturally. Plus, you would get expenses that you reasonably incurred in the performance of the contract. And you can get double damages; that is, you would get a total of twice the value of the contract – this is a deterrence mechanism directed at the hiring party, similar to damages that an employee would get in a wage and hour case. Plus, there is an additional award for a retaliation claim; the retaliation amount is equal to the value of the contract. So if there is retaliation, you would get triple damages.Reasonable attorney’s fees you incur can also be recovered.
Contact us online or call us at (212) 949-1001 you are a Freelancer, Consultant or independent contractor in Manhattan, Brooklyn, the Bronx, Queens or Staten Island, and you are not being paid properly or have been discriminated against.