NY State Senate Bill S8369B

Archive: Last Bill Status - Vetoed by Governor

Introduced
In Committee
On Floor Calendar
- Passed Senate
- Passed Assembly
Delivered to Governor
Vetoed by Governor

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Actions

view actions (17)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Dec 23, 2022	vetoed memo.170
Dec 12, 2022	delivered to governor
Jun 02, 2022	returned to senate passed assembly ordered to third reading rules cal.617 substituted for a9368a
Jun 01, 2022	referred to ways and means delivered to assembly passed senate ordered to third reading cal.1775 committee discharged and committed to rules
May 29, 2022	print number 8369b
May 29, 2022	amend and recommit to finance
May 25, 2022	print number 8369a
May 25, 2022	amend and recommit to finance
May 10, 2022	reported and committed to finance
Feb 17, 2022	referred to labor

Votes

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Jun 1, 2022 - floor Vote

S8369B

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Jun 1, 2022 - Rules committee Vote

S8369B

committee

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Aye with Reservations

Absent

Excused

Abstained

May 10, 2022 - Labor committee Vote

S8369

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

Bill Amendments

Original

B (Active)

Original

B (Active)

Co-Sponsors

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S8369 - Details

See Assembly Version of this Bill:: A9368
Law Section:: Labor Law
Laws Affected:: Add §191-d, Lab L
Versions Introduced in 2023-2024 Legislative Session:: S5026, A6040

S8369 - Summary

Enacts the "freelance isn't free act"; provides for the payment of freelance workers as independent contractors, including requiring written contracts; timely payment of compensation and handling controversies relating to payment, complaint procedures, and penalties; excludes construction contracts.

S8369 - Sponsor Memo

 
BILL NUMBER: S8369

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the labor law, in relation to enacting the "freelance
isn't free act"

 
PURPOSE OR GENERAL IDEA OF BILL:

To provide a recourse to freelance workers experiencing wage theft and
other violations under the Labor Law

 
SUMMARY OF PROVISIONS:

Section one of the bill names it the Freelance Isn't Free Act.

Section two of the bill amends section 190 of the Labor Law to add new
definitions and coverage to Article 6, pertaining to wage theft.

Section three of the bill amends section 191 of the Labor Law to create
provisions around timely payment of freelance workers.

Section four of the bill amends section 195 of the Labor Law to create
provisions around the right for a freelance worker to receive a written
contract from a hiring party.

Section five of the bill amends subdivision 1 of section 196 of the
Labor Law to provide that the Commissioner of Labor shall be able to sue
hiring parties on wage claims at his or her discretion, as is the case
for traditional employers.

Section six of the bill amends subdivision 2 of section 196 of the Labor
Law to require the Commissioner to investigate and attempt to adjust
controversies relating to wage claims when he or she receives a
complaint pursuant to the investigatory process established in section
seven of the bill.

Section seven of this bill amends section 196-a of the Labor Law to
establish a process by which freelance workers may file a complaint with
the Commissioner within two years of an alleged violation. The Commis-
sioner shall then send a notice of the complaint to the hiring party
soliciting a response.

Section eight of the bill amends section 198 of the Labor Law to estab-
lish damages and statutes of limitations for civil actions brought by
freelance workers under the bill.

Section nine of the bill adds a new section 199-b to the Labor Law to
establish additional powers and responsibilities related to freelance
workers, including a right to no retaliation, a navigation program,
created by the Department of Labor, to help freelance workers find model
contracts and court information, and an Attorney General action for
pattern or practice of violations. This section also establishes that
the Department of Labor must collect data on complaints filed through
the Department and submit to the legislature and public an annual report
on the effectiveness of the applicable provisions of this article.


Section ten of the bill provides that the provisions of this act shall
not be construed to override or supplant chapter 10 of title 20 of the
New York City Administrative Code, establishing the NYC Freelance Isn't
Free Law.

Section eleven of the bill sets the effective date.

 
JUSTIFICATION:

On May 15th, 2017, New York City's Local Law 140 of 2016 establishing
the Freelance Isn't Free Act took effect. This landmark law, which
created basic labor protections for freelance workers such as the right
to a written contract, timely and full payment, and protection from
retaliation, has resulted in 1,191 cases filed with the NYC Department
of Consumer and Worker Protection (DCWP) in 2018 and 2019 alone, with
more than $1.3 million recovered in restitution and penalties. In 2020,
amidst the COVID lockdown, there were 490 complaints filed by freelance
workers, 450 for unlawful payment practices. In December of 2021, the
City filed its first lawsuit under the Act against L'Officiel USA, the
American subsidiary of a global magazine company that had demonstrated a
systemic pattern of failing to pay freelancers on time or at all.

These numbers clearly demonstrate what freelancers have always known to
be true: that independent contractors, not protected by the same minimum
wage laws as regular employees and generally ineligible for unemployment
and workers compensation, are some of the most exposed laborers in our
state when it comes to wage theft. Article 6 of the Labor Law, which
prohibits wage theft without exception for employees directly hired by
an employer, does not cover freelancers such as writers, editors, graph-
ic designers, videographers, consultants, temps, and those who are
otherwise self-employed. While New York City's Freelance Isn't Free Law
was a major point of progress for this vulnerable subset of the labor
force, NYC DCWP simply does not have the resources to properly handle
the thousands of cases that come across their radar every year. Further-
more, DCWP has no power to actually compel a hiring party to pay, forc-
ing freelance workers to resort to small claims court to enforce their
rights. Lastly, the city law covers only persons doing business with an
entity located in New York City, excluding freelancers in the rest of
the state.

This bill will replicate the labor rights of NYC's Freelance Isn't Free
Law in state Labor Law, adding administrative oversight and support from
DOL while maintaining the city's local law. It would mandate that any
hiring party across the state retaining a freelancer's services for at
least $250 provide such freelancer with a detailed written contract and
timely and full payment. The bill also includes an anti-retaliation
provision for the exercise of rights prescribed therein, and a cause of
action when any of the above obligations are not met. Additionally, NYS
DOL must create a navigation program which will include model contracts
and court services as well as a non-judicial, administrative process for
resolving disputes between freelancers and hiring parties.

In establishing basic protections against some of the most pernicious
workplace practices, Freelance Isn't Free will help support a key compo-
nent of the modern workforce that is currently unprotected by state
Labor Law. It is the sponsor's belief that adding enforcement for Free-
lance Isn't Free at the state level, which already has a Division of
Labor Standards that handles wage theft claims for traditional employ-
ees, makes good administrative sense and will reduce the need for
aggrieved freelancers to file a claim in civil court. All laborers in
our state deserve the right to fair and timely pay, regardless of the
nature of the work, and bills such as the Freelance Isn't Free Act will
play a key role in holding hiring parties accountable to ensure this
reality.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
This bill shall take effect on the one hundred eightieth day after it
shall have become a law.

S8369 - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8369
 
                             I N  S E N A T E
 
                             February 17, 2022
                                ___________
 
 Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when
   printed to be committed to the Committee on Labor
 
 AN  ACT  to  amend the labor law, in relation to enacting the "freelance
   isn't free act"
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  Short  title. This act shall be known and may be cited as
 the "freelance isn't free act".
   § 2. Section 190 of the labor law is amended by adding four new subdi-
 visions 10, 11, 12 and 13 to read as follows:
   10. "CONSTRUCTION CONTRACTOR" MEANS ANY PERSON, SOLE PROPRIETOR, PART-
 NERSHIP,  FIRM,  CORPORATION,  LIMITED LIABILITY COMPANY, ASSOCIATION OR
 OTHER LEGAL ENTITY WHO BY ONESELF OR THROUGH OTHERS OFFERS TO UNDERTAKE,
 OR HOLDS ONESELF  OUT AS BEING ABLE TO UNDERTAKE,  OR  DOES UNDERTAKE  A
 CONSTRUCTION PROJECT.
   11. "CONSTRUCTION  PROJECT"  MEANS  THE  PROVIDING  OF  ANY  LABOR  OR
 SERVICES, AND THE USE OF ANY MATERIALS OR EQUIPMENT IN ORDER  TO  ALTER,
 BUILD, EXCAVATE, ADD TO, SUBTRACT FROM, IMPROVE, REPAIR, MAINTAIN, RENO-
 VATE, MOVE, WRECK OR DEMOLISH ANY BRIDGE, BUILDING, HIGHWAY, ROAD, RAIL-
 ROAD,  LAND, TUNNEL, SEWER, DRAINAGE OR OTHER STRUCTURE, PROJECT, DEVEL-
 OPMENT, OR IMPROVEMENT, OR THE DOING OF ANY PART THEREOF, INCLUDING  THE
 ERECTION OF SCAFFOLDING OR OTHER STRUCTURES OR WORKS IN CONNECTION THER-
 EWITH.
   12.  "FREELANCE  WORKER"  MEANS  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 TWO HUNDRED  FIFTY  DOLLARS,  EITHER  BY
 ITSELF  OR  WHEN  AGGREGATED WITH ALL CONTRACTS FOR SERVICES BETWEEN THE
 SAME HIRING PARTY AND FREELANCE WORKER DURING THE IMMEDIATELY  PRECEDING
 ONE HUNDRED TWENTY DAYS, BUT DOES NOT INCLUDE:
   A.  ANY  PERSON  WHO,  PURSUANT  TO  THE CONTRACT AT ISSUE, IS A SALES
 REPRESENTATIVE AS DEFINED IN SECTION ONE HUNDRED  NINETY-ONE-A  OF  THIS
 ARTICLE;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD13843-08-2
 S. 8369                             2
 
   B.  ANY PERSON ENGAGED IN THE PRACTICE OF LAW PURSUANT TO THE CONTRACT
 AT ISSUE AND WHO IS A MEMBER IN GOOD STANDING OF THE BAR OF THE  HIGHEST
 COURT  OF ANY STATE, POSSESSION, TERRITORY, COMMONWEALTH OR THE DISTRICT
 OF COLUMBIA AND WHO IS NOT UNDER ANY ORDER OF COURT SUSPENDING,  ENJOIN-
 ING, RESTRAINING, DISBARRING OR OTHERWISE RESTRICTING SUCH PERSON IN THE
 PRACTICES OF LAW;
   C. ANY PERSON WHO IS A LICENSED MEDICAL PROFESSIONAL; OR
   D. ANY PERSON WHO IS A CONSTRUCTION CONTRACTOR.
   13.  "HIRING PARTY" MEANS ANY PERSON WHO RETAINS A FREELANCE WORKER TO
 PROVIDE ANY SERVICE, OTHER THAN:
   A. THE UNITED STATES GOVERNMENT;
   B. THE STATE OF NEW YORK, INCLUDING ANY  OFFICE,  DEPARTMENT,  AGENCY,
 AUTHORITY  OR  OTHER BODY OF THE STATE INCLUDING THE LEGISLATURE AND THE
 JUDICIARY;
   C. A MUNICIPALITY, INCLUDING ANY OFFICE, DEPARTMENT, AGENCY  OR  OTHER
 BODY OF A MUNICIPALITY; OR
   D. ANY FOREIGN GOVERNMENT.
   §  3. Section 191 of the labor law is amended by adding a new subdivi-
 sion 4 to read as follows:
   4. A. EXCEPT AS OTHERWISE PROVIDED BY LAW, THE CONTRACTED COMPENSATION
 SHALL BE PAID TO THE FREELANCE WORKER EITHER:
   (I) ON OR BEFORE THE DATE SUCH COMPENSATION IS DUE UNDER THE TERMS  OF
 THE CONTRACT; OR
   (II)  IF  THE CONTRACT DOES NOT SPECIFY WHEN THE HIRING PARTY MUST PAY
 THE CONTRACTED COMPENSATION OR THE MECHANISM BY WHICH SUCH DATE WILL  BE
 DETERMINED,  NO LATER THAN THIRTY DAYS AFTER THE COMPLETION OF THE FREE-
 LANCE WORKER'S SERVICES UNDER THE CONTRACT.
   B. ONCE A FREELANCE WORKER HAS COMMENCED PERFORMANCE OF  THE  SERVICES
 UNDER THE CONTRACT, THE HIRING PARTY SHALL NOT REQUIRE AS A CONDITION OF
 TIMELY  PAYMENT  THAT THE FREELANCE WORKER ACCEPT LESS COMPENSATION THAN
 THE AMOUNT OF THE CONTRACTED COMPENSATION.
   § 4. Section 195 of the labor law is amended by adding a new  subdivi-
 sion 7 to read as follows:
   7.  (A)  WHENEVER  A  HIRING PARTY RETAINS THE SERVICES OF A FREELANCE
 WORKER, AS SUCH TERMS ARE DEFINED IN SECTION ONE HUNDRED NINETY OF  THIS
 ARTICLE,  THE CONTRACT BETWEEN SUCH PARTY AND WORKER SHALL BE REDUCED TO
 WRITING. THE HIRING PARTY MUST FURNISH A COPY OF SUCH WRITTEN  CONTRACT,
 EITHER  PHYSICALLY  OR  ELECTRONICALLY, TO THE FREELANCE WORKER AND EACH
 PARTY TO THE WRITTEN CONTRACT SHALL RETAIN A COPY THEREOF.
   (B) THE WRITTEN CONTRACT SHALL INCLUDE, AT A  MINIMUM,  THE  FOLLOWING
 INFORMATION:
   (I)  THE  NAME  AND  MAILING  ADDRESS OF BOTH THE HIRING PARTY AND THE
 FREELANCE WORKER;
   (II) AN ITEMIZATION OF ALL SERVICES TO BE PROVIDED  BY  THE  FREELANCE
 WORKER,  THE  VALUE  OF  THE  SERVICES  TO  BE  PROVIDED PURSUANT TO THE
 CONTRACT, AND THE RATE AND METHOD OF COMPENSATION;
   (III) THE DATE ON WHICH THE  HIRING  PARTY  MUST  PAY  THE  CONTRACTED
 COMPENSATION OR THE MECHANISM BY WHICH SUCH DATE WILL BE DETERMINED; AND
   (IV)  THE  DATE  BY  WHICH  A  FREELANCE  WORKER MUST SUBMIT A LIST OF
 SERVICES RENDERED UNDER SUCH CONTRACT TO THE HIRING PARTY  IN  ORDER  TO
 MEET  ANY  INTERNAL  PROCESSING  DEADLINES  OF SUCH HIRING PARTY FOR THE
 PURPOSES OF COMPENSATION BEING TIMELY RENDERED BY THE  AGREED-UPON  DATE
 AS STIPULATED IN SUBPARAGRAPH (III) OF THIS PARAGRAPH.
   (C)  THE  COMMISSIONER  MAY BY RULE REQUIRE ADDITIONAL TERMS TO ENSURE
 THAT THE FREELANCE WORKER AND THE HIRING PARTY  UNDERSTAND  THEIR  OBLI-
 GATIONS UNDER THE CONTRACT.
 S. 8369                             3
 
   (D)  SUCH  HIRING  PARTY SHALL BE REQUIRED TO KEEP SUCH CONTRACT FOR A
 PERIOD OF NO LESS THAN SIX YEARS AND SHALL MAKE SUCH CONTRACT  AVAILABLE
 TO  THE  COMMISSIONER  UPON  REQUEST.  THE  FAILURE OF A HIRING PARTY TO
 PRODUCE SUCH CONTRACT, UPON REQUEST OF THE COMMISSIONER, SHALL GIVE RISE
 TO  A PRESUMPTION THAT THE TERMS THAT THE FREELANCE WORKER HAS PRESENTED
 ARE THE AGREED UPON TERMS.
   § 5. Subdivision 1 of section 196 of  the  labor  law  is  amended  by
 adding a new paragraph f to read as follows:
   F.  THE COMMISSIONER SHALL HAVE THE SAME DUTIES, POWERS, AND AUTHORITY
 DESCRIBED IN THIS SECTION FOR FREELANCE WORKERS AND HIRING  PARTIES,  AS
 DEFINED IN SECTION ONE HUNDRED NINETY OF THIS ARTICLE. IN THE EVENT THAT
 THE  COMMISSIONER  SHALL  SUE  A  HIRING PARTY FOR WAGES DUE A FREELANCE
 WORKER, PURSUANT TO PARAGRAPH B OF THIS SUBDIVISION,  HE  OR  SHE  SHALL
 PROVIDE  SUCH  FREELANCE WORKER WITH A WRITTEN DESCRIPTION OF THE ANTIC-
 IPATED PROCESSING OF SUCH CLAIM, INCLUDING INVESTIGATION,  CASE  CONFER-
 ENCE, POTENTIAL CIVIL AND CRIMINAL PENALTIES, AND COLLECTION PROCEDURES.
 EACH  FREELANCE WORKER AND HIS OR HER AUTHORIZED REPRESENTATIVE SHALL BE
 NOTIFIED IN WRITING OF ANY CASE CONFERENCE BEFORE IT IS HELD  AND  GIVEN
 THE  OPPORTUNITY TO ATTEND. EACH FREELANCE WORKER AND HIS OR HER AUTHOR-
 IZED REPRESENTATIVE SHALL ALSO BE NOTIFIED IN WRITING OF ANY  AWARD  AND
 COLLECTION  OF BACK WAGES AND CIVIL PENALTIES, AND OF ANY INTENT TO SEEK
 CRIMINAL PENALTIES. IN THE EVENT THAT CRIMINAL PENALTIES ARE SOUGHT  THE
 FREELANCE WORKER AND HIS OR HER AUTHORIZED REPRESENTATIVE SHALL BE NOTI-
 FIED OF THE OUTCOME OF PROSECUTION.
   §  6.  Subdivision  2  of  section 196 of the labor law, as amended by
 chapter 564 of the laws of 2010, is amended to read as follows:
   2. Nothing in this section shall be construed as requiring the commis-
 sioner in every instance to investigate and attempt to adjust controver-
 sies, or to take assignments of wage claims, or  to  institute  criminal
 prosecutions  for  any  violation  under  this  article or article five,
 seven, nineteen or nineteen-A of this chapter, but he or  she  shall  be
 deemed  vested  with discretion in such matters.  THIS SUBDIVISION SHALL
 NOT APPLY, HOWEVER, TO FREELANCE WORKERS FILING A COMPLAINT PURSUANT  TO
 SECTION  ONE  HUNDRED  NINETY-SIX-A  OF  THIS ARTICLE, IN WHICH CASE THE
 COMMISSIONER SHALL BE REQUIRED TO INVESTIGATE SUCH COMPLAINT PURSUANT TO
 SUCH SECTION.
   § 7. Section 196-a of the labor law is amended by adding a new  subdi-
 vision (c) to read as follows:
   (C)(I)  A  FREELANCE  WORKER  WHO  IS AGGRIEVED BY A VIOLATION OF THIS
 ARTICLE MAY FILE A COMPLAINT WITH  THE  COMMISSIONER  WITHIN  TWO  YEARS
 AFTER  THE  ACTS  ALLEGED  TO  HAVE  VIOLATED THIS ARTICLE OCCURRED. THE
 COMMISSIONER SHALL PRESCRIBE THE FORM  OF  THE  COMPLAINT,  WHICH  SHALL
 INCLUDE, AT A MINIMUM:
   (A)  THE  NAME  AND MAILING ADDRESS OF THE FREELANCE WORKER AND OF THE
 HIRING PARTY ALLEGED TO HAVE VIOLATED THIS ARTICLE;
   (B) A STATEMENT DETAILING THE TERMS OF THE FREELANCE CONTRACT, INCLUD-
 ING A COPY OF SUCH CONTRACT IF AVAILABLE;
   (C) THE FREELANCE WORKER'S OCCUPATION;
   (D) A STATEMENT DETAILING THE ALLEGED VIOLATIONS OF THIS ARTICLE; AND
   (E) A SIGNED AFFIRMATION THAT ALL FACTS ALLEGED IN THE  COMPLAINT  ARE
 TRUE.
   (II)  AT  THE  TIME  THE  COMMISSIONER RECEIVES A COMPLAINT ALLEGING A
 VIOLATION OF THIS ARTICLE, THE COMMISSIONER SHALL  REFER  THE  FREELANCE
 WORKER  TO  THE  NAVIGATION  PROGRAM  IDENTIFIED  IN  SUBDIVISION TWO OF
 SECTION ONE HUNDRED NINETY-NINE-B OF THIS ARTICLE.
 S. 8369                             4
 
   (III) WITHIN TWENTY DAYS OF RECEIVING A COMPLAINT ALLEGING A VIOLATION
 OF THIS ARTICLE, THE COMMISSIONER SHALL SEND THE HIRING PARTY  NAMED  IN
 THE  COMPLAINT  A  WRITTEN NOTICE OF COMPLAINT. SUCH NOTICE SHALL INFORM
 THE HIRING PARTY THAT A COMPLAINT HAS BEEN FILED ALLEGING VIOLATIONS  OF
 THIS  ARTICLE,  DETAIL  THE REMEDIES AVAILABLE TO A FREELANCE WORKER FOR
 VIOLATIONS OF THIS ARTICLE BY A HIRING PARTY, AND INCLUDE A COPY OF  THE
 COMPLAINT  AND NOTICE THAT FAILURE TO RESPOND TO THE COMPLAINT CREATES A
 REBUTTABLE PRESUMPTION IN ANY CIVIL ACTION COMMENCED  PURSUANT  TO  THIS
 ARTICLE  THAT  THE  HIRING PARTY COMMITTED THE VIOLATIONS ALLEGED IN THE
 COMPLAINT. THE COMMISSIONER SHALL SEND SUCH NOTICE BY CERTIFIED MAIL AND
 SHALL BEAR THE COST OF SENDING SUCH NOTICE.
   (IV) (A) WITHIN TWENTY DAYS OF RECEIVING THE NOTICE OF COMPLAINT,  THE
 HIRING PARTY IDENTIFIED IN THE COMPLAINT SHALL SEND THE COMMISSIONER ONE
 OF THE FOLLOWING:
   (1)  A  WRITTEN  STATEMENT  THAT THE FREELANCE WORKER HAS BEEN PAID IN
 FULL AND PROOF OF SUCH PAYMENT; OR
   (2) A WRITTEN STATEMENT THAT THE FREELANCE WORKER HAS NOT BEEN PAID IN
 FULL AND THE REASONS FOR THE FAILURE TO PROVIDE SUCH PAYMENT.
   (B) WITHIN TWENTY DAYS OF RECEIVING THE WRITTEN RESPONSE, THE  COMMIS-
 SIONER SHALL SEND THE FREELANCE WORKER A COPY OF:
   (1) THE RESPONSE;
   (2) ANY ENCLOSURES SUBMITTED TO THE COMMISSIONER WITH THE RESPONSE;
   (3)  MATERIALS INFORMING THE FREELANCE WORKER THAT HE OR SHE MAY BRING
 AN ACTION IN A COURT OF COMPETENT JURISDICTION;
   (4) ANY OTHER INFORMATION ABOUT THE STATUS OF THE COMPLAINT; AND
   (5) INFORMATION ABOUT THE NAVIGATION PROGRAM DESCRIBED IN  SUBDIVISION
 TWO OF SECTION ONE HUNDRED NINETY-NINE-B OF THIS ARTICLE.
   (C)  IF  THE  COMMISSIONER  RECEIVES  NO  RESPONSE  TO  THE  NOTICE OF
 COMPLAINT WITHIN THE TIME PROVIDED BY THIS SUBDIVISION, THE COMMISSIONER
 SHALL MAIL A NOTICE OF NON-RESPONSE TO BOTH THE FREELANCE WORKER AND THE
 HIRING PARTY BY REGULAR MAIL AND SHALL INCLUDE WITH  SUCH  NOTICE  PROOF
 THAT  THE  COMMISSIONER PREVIOUSLY MAILED THE NOTICE OF COMPLAINT TO THE
 HIRING PARTY BY CERTIFIED MAIL. UPON SATISFYING THE REQUIREMENTS OF THIS
 PARAGRAPH, THE COMMISSIONER MAY CLOSE THE CASE.
   § 8. Section 198 of the labor law is amended by adding a new  subdivi-
 sion 5 to read as follows:
   5.(A)  (I) A FREELANCE WORKER ALLEGING A VIOLATION OF THIS ARTICLE MAY
 BRING AN ACTION IN ANY COURT OF COMPETENT JURISDICTION FOR DAMAGES.
   (II) ANY ACTION ALLEGING A VIOLATION OF SUBDIVISION SEVEN  OF  SECTION
 ONE  HUNDRED  NINETY-FIVE  OF  THIS  ARTICLE SHALL BE BROUGHT WITHIN TWO
 YEARS AFTER THE ACTS ALLEGED TO HAVE VIOLATED THIS ARTICLE OCCURRED.
   (III) ANY ACTION ALLEGING A VIOLATION OF SUBDIVISION FOUR  OF  SECTION
 ONE  HUNDRED  NINETY-ONE OR SUBDIVISION ONE OF SECTION ONE HUNDRED NINE-
 TY-NINE-B OF THIS ARTICLE SHALL BE BROUGHT WITHIN SIX  YEARS  AFTER  THE
 ACTS ALLEGED TO HAVE VIOLATED THIS ARTICLE OCCURRED.
   (IV) WITHIN TEN DAYS AFTER HAVING COMMENCED A CIVIL ACTION PURSUANT TO
 THIS  SUBDIVISION,  A PLAINTIFF SHALL SERVE A COPY OF THE COMPLAINT UPON
 AN AUTHORIZED REPRESENTATIVE OF THE COMMISSIONER. FAILURE TO SO SERVE  A
 COMPLAINT DOES NOT ADVERSELY AFFECT ANY PLAINTIFF'S CAUSE OF ACTION.
   (V) A PLAINTIFF WHO SOLELY ALLEGES A VIOLATION OF SUBDIVISION SEVEN OF
 SECTION  ONE  HUNDRED  NINETY-FIVE  OF THIS ARTICLE MUST PROVE THAT SUCH
 PLAINTIFF REQUESTED A WRITTEN CONTRACT BEFORE THE CONTRACTED WORK BEGAN.
   (B) (I) A PLAINTIFF WHO PREVAILS ON A CLAIM ALLEGING  A  VIOLATION  OF
 THIS  ARTICLE  SHALL BE AWARDED DAMAGES AS DESCRIBED IN THIS SUBDIVISION
 AND AN AWARD OF REASONABLE ATTORNEYS' FEES AND COSTS.
 S. 8369                             5
 
   (II) (A) A PLAINTIFF WHO PREVAILS ON A CLAIM ALLEGING A  VIOLATION  OF
 SUBDIVISION  SEVEN  OF  SECTION  ONE HUNDRED NINETY-FIVE OF THIS ARTICLE
 SHALL BE AWARDED STATUTORY DAMAGES OF TWO HUNDRED FIFTY DOLLARS.
   (B) A PLAINTIFF WHO PREVAILS ON A CLAIM ALLEGING A VIOLATION OF SUBDI-
 VISION  SEVEN  OF SECTION ONE HUNDRED NINETY-FIVE OF THIS ARTICLE AND ON
 ONE OR MORE CLAIMS UNDER OTHER  PROVISIONS  OF  THIS  ARTICLE  SHALL  BE
 AWARDED  STATUTORY DAMAGES EQUAL TO THE VALUE OF THE UNDERLYING CONTRACT
 FOR THE VIOLATION OF SUCH SUBDIVISION SEVEN IN ADDITION TO THE  REMEDIES
 SPECIFIED IN THIS ARTICLE FOR SUCH OTHER VIOLATIONS.
   (III) IN ADDITION TO OTHER DAMAGES AWARDED PURSUANT TO THIS ARTICLE, A
 PLAINTIFF  WHO  PREVAILS  ON A CLAIM ALLEGING A VIOLATION OF SUBDIVISION
 FOUR OF SECTION ONE HUNDRED NINETY-ONE OF THIS ARTICLE IS ENTITLED TO AN
 AWARD OF DOUBLE DAMAGES, INJUNCTIVE RELIEF, AND OTHER SUCH  REMEDIES  AS
 MAY BE APPROPRIATE.
   (IV)  IN  ADDITION TO ANY OTHER DAMAGES AWARDED PURSUANT TO THIS ARTI-
 CLE, A PLAINTIFF WHO PREVAILS ON A CLAIM ALLEGING A VIOLATION OF  SUBDI-
 VISION ONE OF SECTION ONE HUNDRED NINETY-NINE-B OF THIS ARTICLE IS ENTI-
 TLED  TO STATUTORY DAMAGES EQUAL TO THE VALUE OF THE UNDERLYING CONTRACT
 FOR EACH VIOLATION ARISING UNDER SUCH SUBDIVISION.
   § 9. The labor law is amended by adding a new section 199-b to read as
 follows:
   § 199-B. ADDITIONAL POWERS AND RESPONSIBILITIES RELATING TO  FREELANCE
 WORKERS.   1.   RETALIATION.  NO HIRING PARTY, AS DEFINED IN SECTION ONE
 HUNDRED NINETY OF THIS ARTICLE, SHALL THREATEN, INTIMIDATE,  DISCIPLINE,
 HARASS,  DENY A WORK OPPORTUNITY TO, OR DISCRIMINATE AGAINST A FREELANCE
 WORKER, OR TAKE ANY OTHER ACTION THAT PENALIZES A FREELANCE WORKER  FOR,
 OR  IS REASONABLY LIKELY TO DETER A FREELANCE WORKER FROM, EXERCISING OR
 ATTEMPTING TO EXERCISE ANY RIGHT GUARANTEED UNDER THIS ARTICLE, OR  FROM
 OBTAINING  ANY  FUTURE WORK OPPORTUNITY BECAUSE THE FREELANCE WORKER HAS
 DONE SO.
   2. NAVIGATION PROGRAM. (A) THE COMMISSIONER SHALL ESTABLISH A  NAVIGA-
 TION  PROGRAM  THAT PROVIDES INFORMATION AND ASSISTANCE, AS SET FORTH IN
 SUBDIVISION (C) OF SECTION ONE HUNDRED  NINETY-SIX-A  OF  THIS  ARTICLE,
 RELATING  TO  THE PROVISIONS OF THIS ARTICLE. SUCH PROGRAM SHALL INCLUDE
 ASSISTANCE BY A NATURAL PERSON  BY  PHONE  AND  E-MAIL  AND  SHALL  ALSO
 INCLUDE ONLINE INFORMATION.
   (B)  THE  COMMISSIONER    SHALL  MAKE AVAILABLE MODEL CONTRACTS ON THE
 WEBSITE OF THE  DEPARTMENT FOR USE BY THE GENERAL  PUBLIC  AT  NO  COST.
 SUCH  MODEL  CONTRACTS  SHALL  BE  MADE  AVAILABLE IN ENGLISH AND IN THE
 TWELVE LANGUAGES MOST COMMONLY  SPOKEN  BY  LIMITED  ENGLISH  PROFICIENT
 INDIVIDUALS IN THE STATE.
   (C) THE NAVIGATION PROGRAM SHALL PROVIDE THE FOLLOWING:
   (I)  GENERAL  COURT INFORMATION AND INFORMATION ABOUT PROCEDURES UNDER
 THIS ARTICLE;
   (II) INFORMATION ABOUT AVAILABLE TEMPLATES AND RELEVANT COURT FORMS;
   (III) GENERAL INFORMATION ABOUT CLASSIFYING PERSONS  AS  EMPLOYEES  OR
 INDEPENDENT CONTRACTORS;
   (IV)   INFORMATION  ABOUT  OBTAINING  TRANSLATION  AND  INTERPRETATION
 SERVICES AND OTHER COURTROOM SERVICES;
   (V) A LIST OF ORGANIZATIONS THAT CAN BE USED FOR THE IDENTIFICATION OF
 ATTORNEYS; AND
   (VI) OTHER INFORMATION, AS DETERMINED BY THE COMMISSIONER, RELATED  TO
 THE  SUBMISSION OF A COMPLAINT BY A FREELANCE WORKER OR THE COMMENCEMENT
 OF A CIVIL ACTION PURSUANT TO THIS ARTICLE BY A FREELANCE WORKER.
   (D) THE NAVIGATION PROGRAM SHALL INCLUDE OUTREACH AND EDUCATION TO THE
 PUBLIC ON THE PROVISIONS OF THIS ARTICLE.
 S. 8369                             6
 
   (E) THE NAVIGATION PROGRAM SHALL NOT PROVIDE LEGAL ADVICE.
   3.  CIVIL  ACTION  FOR PATTERN OR PRACTICE OF VIOLATIONS. (A)(I) WHERE
 REASONABLE CAUSE EXISTS TO BELIEVE THAT A HIRING PARTY IS ENGAGED  IN  A
 PATTERN  OR PRACTICE OF VIOLATIONS OF THIS ARTICLE, THE ATTORNEY GENERAL
 MAY COMMENCE A CIVIL ACTION ON BEHALF OF THE STATE IN A COURT OF  COMPE-
 TENT JURISDICTION.
   (II) AN ACTION PURSUANT TO SUBPARAGRAPH (I) OF THIS PARAGRAPH SHALL BE
 COMMENCED  BY  FILING  A  COMPLAINT SETTING FORTH FACTS RELATING TO SUCH
 PATTERN OR PRACTICE AND REQUESTING RELIEF, WHICH MAY INCLUDE  INJUNCTIVE
 RELIEF, CIVIL PENALTIES, AND ANY OTHER APPROPRIATE RELIEF.
   (III) NOTHING IN THIS PARAGRAPH PROHIBITS:
   (A)  A PERSON ALLEGING A VIOLATION OF THIS ARTICLE FROM FILING A CIVIL
 ACTION PURSUANT TO SECTION ONE  HUNDRED  NINETY-EIGHT  OF  THIS  ARTICLE
 BASED  ON  THE  SAME  FACTS  AS A CIVIL ACTION COMMENCED BY THE ATTORNEY
 GENERAL PURSUANT TO THIS SECTION; OR
   (B) THE COMMISSIONER FROM SENDING A NOTICE OF  COMPLAINT  PURSUANT  TO
 SECTION  ONE  HUNDRED  NINETY-SIX-A  OF  THIS  ARTICLE, UNLESS OTHERWISE
 BARRED FROM DOING SO.
   (B) IN ANY CIVIL ACTION COMMENCED PURSUANT TO PARAGRAPH  (A)  OF  THIS
 SUBDIVISION,  THE  TRIER  OF FACT MAY IMPOSE A CIVIL PENALTY OF NOT MORE
 THAN TWENTY-FIVE THOUSAND DOLLARS FOR A FINDING THAT A HIRING PARTY  HAS
 ENGAGED  IN  A  PATTERN  OR  PRACTICE OF VIOLATIONS OF THIS ARTICLE. ANY
 CIVIL PENALTY SO RECOVERED SHALL BE PAID INTO THE GENERAL FUND.
   4. APPLICATION; WAIVER; EFFECT ON OTHER LAWS. (A) EXCEPT AS  OTHERWISE
 PROVIDED  BY LAW, ANY PROVISION OF A CONTRACT PURPORTING TO WAIVE RIGHTS
 UNDER THIS ARTICLE IS VOID AS AGAINST PUBLIC POLICY.
   (B) THE PROVISIONS OF THIS ARTICLE SUPPLEMENT, AND DO NOT DIMINISH  OR
 REPLACE,  ANY  OTHER  BASIS  OF  LIABILITY OR REQUIREMENT ESTABLISHED BY
 STATUTE OR COMMON LAW.
   (C) FAILURE TO COMPLY WITH THE PROVISIONS OF  THIS  ARTICLE  DOES  NOT
 RENDER  ANY  CONTRACT BETWEEN A HIRING PARTY AND A FREELANCE WORKER VOID
 OR VOIDABLE OR OTHERWISE IMPAIR ANY OBLIGATION, CLAIM OR  RIGHT  RELATED
 TO  SUCH CONTRACT OR CONSTITUTE A DEFENSE TO ANY ACTION OR PROCEEDING TO
 ENFORCE, OR FOR BREACH OF, SUCH CONTRACT.
   (D) NO PROVISION OF THIS ARTICLE RELATING TO FREELANCE  WORKERS  SHALL
 BE CONSTRUED AS PROVIDING A DETERMINATION ABOUT THE LEGAL CLASSIFICATION
 OF ANY SUCH WORKER AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR.
   5.  DATA COLLECTION AND REPORTING.  (A) NO LATER THAN SIX MONTHS AFTER
 THE COMMISSIONER SENDS TO A FREELANCE WORKER  EITHER  A  HIRING  PARTY'S
 RESPONSE AND ACCOMPANYING MATERIALS OR A NOTICE OF NON-RESPONSE PURSUANT
 TO  SECTION  ONE  HUNDRED NINETY-SIX-A OF THIS ARTICLE, THE COMMISSIONER
 SHALL SEND THE FREELANCE WORKER A SURVEY REQUESTING ADDITIONAL  INFORMA-
 TION  ABOUT THE RESOLUTION OF THE FREELANCE WORKER'S CLAIMS. SUCH SURVEY
 SHALL ASK WHETHER OR NOT THE FREELANCE WORKER PURSUED ANY SUCH CLAIMS IN
 COURT OR THROUGH AN ALTERNATIVE DISPUTE RESOLUTION PROCESS  AND  WHETHER
 OR  NOT  THE HIRING PARTY ULTIMATELY PAID ANY OR ALL OF THE COMPENSATION
 THE FREELANCE WORKER ALLEGED WAS DUE OR IF THE MATTER WAS RESOLVED IN  A
 DIFFERENT  MANNER.  SUCH SURVEY SHALL STATE CLEARLY THAT RESPONSE TO THE
 SURVEY IS VOLUNTARY.
   (B)  THE  COMMISSIONER  SHALL  COLLECT  AND  TRACK  INFORMATION  ABOUT
 COMPLAINTS   ALLEGING   VIOLATIONS  OF  THIS  ARTICLE.  THE  INFORMATION
 COLLECTED SHALL INCLUDE, AT MINIMUM:
   (I) THE IDENTITY OF THE HIRING PARTY ALLEGED  TO  HAVE  VIOLATED  THIS
 CHAPTER;
   (II) THE FREELANCE WORKER'S OCCUPATION;
 S. 8369                             7
 
   (III)  THE  SECTION  OF  THIS  ARTICLE  THAT  WAS ALLEGED TO HAVE BEEN
 VIOLATED;
   (IV) THE VALUE OF THE CONTRACT;
   (V) THE RESPONSE OR NON-RESPONSE FROM THE HIRING PARTY; AND
   (VI)  INFORMATION  FROM A COMPLETED SURVEY IDENTIFIED IN PARAGRAPH (A)
 OF THIS SUBDIVISION.
   (C) ONE YEAR AFTER THE EFFECTIVE DATE OF THIS SECTION, AND EVERY FIFTH
 YEAR THEREAFTER BY NOVEMBER FIRST, THE COMMISSIONER SHALL SUBMIT TO  THE
 LEGISLATURE AND PUBLISH ON ITS WEBSITE A REPORT REGARDING THE EFFECTIVE-
 NESS OF THE APPLICABLE PROVISIONS OF THIS ARTICLE AT IMPROVING FREELANCE
 CONTRACTING  AND  PAYMENT  PRACTICES.    SUCH REPORT SHALL INCLUDE, AT A
 MINIMUM:
   (I) THE NUMBER OF COMPLAINTS THE COMMISSIONER HAS RECEIVED PURSUANT TO
 SUCH PROVISIONS;
   (II) THE VALUE OF THE CONTRACTS  DISAGGREGATED  INTO  RANGES  OF  FIVE
 HUNDRED  DOLLARS  AND  BY  SECTION  OF THIS ARTICLE ALLEGED TO HAVE BEEN
 VIOLATED;
   (III) THE NUMBERS OF  RESPONSES  AND  NON-RESPONSES  RECEIVED  BY  THE
 COMMISSIONER DISAGGREGATED BY CONTRACT VALUE INTO RANGES OF FIVE HUNDRED
 DOLLARS AND BY SECTION OF THIS ARTICLE ALLEGED TO HAVE BEEN VIOLATED;
   (IV)  THE  PROPORTION  OF SURVEYS RECEIVED FROM FREELANCE WORKERS THAT
 INDICATE THAT THEY PURSUED THEIR CLAIMS IN COURT AND THE  PROPORTION  OF
 SURVEYS  RECEIVED FROM FREELANCE WORKERS THAT INDICATE THAT THEY PURSUED
 THEIR CLAIMS THROUGH AN ALTERNATIVE DISPUTE  RESOLUTION  PROCESS  AND  A
 SUMMARY OF THE OUTCOMES OF SUCH CASES; AND
   (V)  LEGISLATIVE  RECOMMENDATIONS,  INCLUDING CONSIDERATION OF WHETHER
 CERTAIN OCCUPATIONS SHOULD BE EXEMPTED FROM THE SCOPE OF THE  DEFINITION
 OF FREELANCE WORKER IN SECTION ONE HUNDRED NINETY OF THIS ARTICLE.
   § 10. The provisions of this act shall not be construed or interpreted
 to  override or supplant any of the provisions of chapter 10 of title 20
 of the administrative code of the city of New York.
   § 11. This act shall take effect on  the  one  hundred  eightieth  day
 after  it  shall  have  become  a  law and shall apply only to contracts
 entered into on or after such effective date. Effective immediately, the
 addition, amendment and/or repeal of any rules or regulations  necessary
 for  the implementation of this act on its effective date are authorized
 to be made on or before such effective date.

Co-Sponsors

view additional co-sponsors

S8369A - Details

See Assembly Version of this Bill:: A9368
Law Section:: Labor Law
Laws Affected:: Add §191-d, Lab L
Versions Introduced in 2023-2024 Legislative Session:: S5026, A6040

S8369A - Summary

S8369A - Sponsor Memo

 
BILL NUMBER: S8369A

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the labor law, in relation to enacting the "freelance
isn't free act"

 
PURPOSE OR GENERAL IDEA OF BILL:

To provide a recourse to freelance workers experiencing wage theft and
other violations under the Labor Law

 
SUMMARY OF PROVISIONS:

Section one of the bill names it the Freelance Isn't Free Act.

Section two of the bill adds a new section 191-d to the Labor Law.  This
section creates provisions related to the timely payment of freelance
workers, a right to a written contract from a hiring party, an adminis-
trative process for the Department of Labor to investigate complaints,
the ability of DOL to sue hiring parties on wage claims at their

discretion, a private right action for violations of this section with
damages levels, a right to no retaliation, a right of action for the
Attorney General for a pattern or practice of violations, a public
awareness outreach campaign, and a reporting requirement. Much of the
language in this new section 191-d in the Labor Law is drawn from exist-
ing language in Article 6 that provides wage theft protections for
traditional employees, creating parity between the two different types
of laborers.

Section three of the bill provides that the provisions of this act shall
not be construed to override or supplant chapter 10 of title 20 of the
New York City Administrative Code, establishing the NYC Freelance Isn't
Free Law.

Section four of the bill sets the effective date.

 
JUSTIFICATION:

On May 15th, 2017, New York City's Local Law 140 of 2016 establishing
the Freelance Isn't Free Act took effect. This landmark law, which
created basic labor protections for freelance workers such as the right
to a written contract, timely and full payment, and protection from
retaliation, has resulted in 1,191 cases filed with the NYC Department
of Consumer and Worker Protection (DCWP) in 2018 and 2019 alone, with
more than $1.3 million recovered in restitution and penalties. In 2020,
amidst the COVID lockdown, there were 490 complaints filed by freelance
workers, 450 for unlawful payment practices. In December of 2021, the
City filed its first lawsuit under the Act against L'Officiel USA, the
American subsidiary of a global magazine company that had demonstrated a
systemic pattern of failing to pay freelancers on time or at all.

These numbers clearly demonstrate what freelancers have always known to
be true: that independent contractors, not protected by the same minimum
wage laws as regular employees and generally ineligible for unemployment
and workers compensation, are some of the most exposed laborers in our
state when it comes to wage theft. Article 6 of the Labor Law, which
prohibits wage theft without exception for employees directly hired by
an employer, does not cover freelancers such as writers, editors, graph-
ic designers, videographers, consultants, temps, and those who are
otherwise self-employed. While New York City's Freelance Isn't Free Law
was a major point of progress for this vulnerable subset of the labor
force, NYC DCWP simply does not have the resources to properly handle
the thousands of cases that come across their radar every year. Further-
more, DCWP has no power to actually compel a hiring party to pay, forc-
ing freelance workers to resort to small claims court to enforce their
rights. Lastly, the city law covers only persons doing business with an
entity located in New York City, excluding freelancers in the rest of
the state.

This bill will replicate the labor rights of NYC's Freelance Isn't Free
Law in state Labor Law, adding administrative oversight and support from
DOL while maintaining the city's local law. It would mandate that any
hiring party across the state retaining a freelancer's services for at
least $250 provide such freelancer with a detailed written contract and
timely and full payment. The bill also includes an anti-retaliation
provision for the exercise of rights prescribed therein, and a cause of
action when any of the above obligations are not met. Additionally, NYS
DOL must provide model contracts as well as a non-judicial, administra-
tive process for resolving disputes between freelancers and hiring
parties. This bill replicates labor protections that already exist for
traditional employees covered under Article 6 in the Labor Law, creating
parity between employees hired onto a. payroll and freelancers hired
under a time-limited contract.

In establishing basic protections against some of the most pernicious
workplace practices, Freelance Isn't Free will help support a key compo-
nent of the modern workforce that is currently unprotected by state
Labor Law. It is the sponsor's belief that adding enforcement for Free-
lance Isn't Free at the state level, which already has a Division of
Labor Standards that handles wage theft claims for traditional employ-
ees, makes good administrative sense and will reduce the need for
aggrieved freelancers to file a claim in civil court. All laborers in
our state deserve the right to fair and timely pay, regardless of the
nature of the work, and bills such as the Freelance Isn't Free Act will
play a key role in holding hiring parties accountable to ensure this
reality.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
This bill shall take effect on the one hundred eightieth day after it
shall have become a law.

S8369A - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8369--A
 
                             I N  S E N A T E
 
                             February 17, 2022
                                ___________
 
 Introduced  by Sens. GOUNARDES, BIAGGI, CLEARE, HOYLMAN, JACKSON, KRUEG-
   ER, MYRIE, RAMOS, RIVERA, RYAN, SALAZAR, SEPULVEDA,  SKOUFIS  --  read
   twice  and  ordered  printed,  and when printed to be committed to the
   Committee on Labor --  reported  favorably  from  said  committee  and
   committed  to  the  Committee on Finance -- committee discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee
 
 AN  ACT  to  amend the labor law, in relation to enacting the "freelance
   isn't free act"
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Short  title. This act shall be known and may be cited as
 the "freelance isn't free act".
   § 2. The labor law is amended by adding a new section 191-d to read as
 follows:
   § 191-D. PAYMENT OF WAGES FOR FREELANCE WORKERS. 1.  (A) "CONSTRUCTION
 CONTRACTOR" MEANS ANY  PERSON,  SOLE  PROPRIETOR,  PARTNERSHIP,    FIRM,
 CORPORATION,    LIMITED  LIABILITY  COMPANY,  ASSOCIATION OR OTHER LEGAL
 ENTITY WHO BY ONESELF OR THROUGH OTHERS OFFERS TO  UNDERTAKE,  OR  HOLDS
 ONESELF    OUT  AS  BEING  ABLE  TO UNDERTAKE,   OR   DOES UNDERTAKE   A
 CONSTRUCTION PROJECT.
   (B) "CONSTRUCTION  PROJECT"  MEANS  THE  PROVIDING  OF  ANY  LABOR  OR
 SERVICES, AND THE USE OF ANY MATERIALS OR EQUIPMENT IN ORDER  TO  ALTER,
 BUILD, EXCAVATE, ADD TO, SUBTRACT FROM, IMPROVE, REPAIR, MAINTAIN, RENO-
 VATE, MOVE, WRECK OR DEMOLISH ANY BRIDGE, BUILDING, HIGHWAY, ROAD, RAIL-
 ROAD,  LAND, TUNNEL, SEWER, DRAINAGE OR OTHER STRUCTURE, PROJECT, DEVEL-
 OPMENT, OR IMPROVEMENT, OR THE DOING OF ANY PART THEREOF, INCLUDING  THE
 ERECTION OF SCAFFOLDING OR OTHER STRUCTURES OR WORKS IN CONNECTION THER-
 EWITH.
   (C)  "FREELANCE  WORKER"  MEANS  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 TWO HUNDRED  FIFTY  DOLLARS,  EITHER  BY
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD13843-11-2
 S. 8369--A                          2
 
 ITSELF  OR  WHEN  AGGREGATED WITH ALL CONTRACTS FOR SERVICES BETWEEN THE
 SAME HIRING PARTY AND FREELANCE WORKER DURING THE IMMEDIATELY  PRECEDING
 ONE HUNDRED TWENTY DAYS, BUT DOES NOT INCLUDE:
   (I)  ANY  PERSON  WHO,  PURSUANT  TO THE CONTRACT AT ISSUE, IS A SALES
 REPRESENTATIVE AS DEFINED IN SECTION ONE HUNDRED  NINETY-ONE-A  OF  THIS
 ARTICLE;
   (II)  ANY  PERSON  ENGAGED  IN  THE  PRACTICE  OF  LAW PURSUANT TO THE
 CONTRACT AT ISSUE AND WHO IS A MEMBER IN GOOD STANDING OF THE BAR OF THE
 HIGHEST COURT OF ANY STATE, POSSESSION, TERRITORY, COMMONWEALTH  OR  THE
 DISTRICT OF COLUMBIA AND WHO IS NOT UNDER ANY ORDER OF COURT SUSPENDING,
 ENJOINING,  RESTRAINING, DISBARRING OR OTHERWISE RESTRICTING SUCH PERSON
 IN THE PRACTICES OF LAW;
   (III) ANY PERSON WHO IS A LICENSED MEDICAL PROFESSIONAL; OR
   (IV) ANY PERSON WHO IS A CONSTRUCTION CONTRACTOR.
   (D) "HIRING PARTY" MEANS ANY PERSON WHO RETAINS A FREELANCE WORKER  TO
 PROVIDE ANY SERVICE, OTHER THAN:
   (I) THE UNITED STATES GOVERNMENT;
   (II)  THE STATE OF NEW YORK, INCLUDING ANY OFFICE, DEPARTMENT, AGENCY,
 AUTHORITY OR OTHER BODY OF THE STATE INCLUDING THE LEGISLATURE  AND  THE
 JUDICIARY;
   (III)  A  MUNICIPALITY,  INCLUDING  ANY  OFFICE, DEPARTMENT, AGENCY OR
 OTHER BODY OF A MUNICIPALITY; OR
   (IV) ANY FOREIGN GOVERNMENT.
   2. (A) EXCEPT AS OTHERWISE PROVIDED BY  LAW,  THE  CONTRACTED  COMPEN-
 SATION SHALL BE PAID TO A FREELANCE WORKER EITHER:
   (I)  ON OR BEFORE THE DATE SUCH COMPENSATION IS DUE UNDER THE TERMS OF
 THE CONTRACT; OR
   (II) IF THE CONTRACT DOES NOT SPECIFY WHEN THE HIRING PARTY  MUST  PAY
 THE  CONTRACTED COMPENSATION OR THE MECHANISM BY WHICH SUCH DATE WILL BE
 DETERMINED, NO LATER THAN THIRTY DAYS AFTER THE COMPLETION OF THE  FREE-
 LANCE WORKER'S SERVICES UNDER THE CONTRACT.
   (B)  ONCE A FREELANCE WORKER HAS COMMENCED PERFORMANCE OF THE SERVICES
 UNDER THE CONTRACT, THE HIRING PARTY SHALL NOT REQUIRE AS A CONDITION OF
 TIMELY PAYMENT THAT THE FREELANCE WORKER ACCEPT LESS  COMPENSATION  THAN
 THE AMOUNT OF THE CONTRACTED COMPENSATION.
   3.  (A)  WHENEVER  A  HIRING PARTY RETAINS THE SERVICES OF A FREELANCE
 WORKER, AS SUCH TERMS ARE DEFINED IN THIS SECTION, THE CONTRACT  BETWEEN
 SUCH PARTY AND WORKER SHALL BE REDUCED TO WRITING. THE HIRING PARTY MUST
 FURNISH  A COPY OF SUCH WRITTEN CONTRACT, EITHER PHYSICALLY OR ELECTRON-
 ICALLY, TO THE FREELANCE WORKER AND EACH PARTY TO THE  WRITTEN  CONTRACT
 SHALL RETAIN A COPY THEREOF.
   (B)  THE  WRITTEN  CONTRACT SHALL INCLUDE, AT A MINIMUM, THE FOLLOWING
 INFORMATION:
   (I) THE NAME AND MAILING ADDRESS OF BOTH  THE  HIRING  PARTY  AND  THE
 FREELANCE WORKER;
   (II)  AN  ITEMIZATION  OF ALL SERVICES TO BE PROVIDED BY THE FREELANCE
 WORKER, THE VALUE OF  THE  SERVICES  TO  BE  PROVIDED  PURSUANT  TO  THE
 CONTRACT, AND THE RATE AND METHOD OF COMPENSATION;
   (III)  THE  DATE  ON  WHICH  THE  HIRING PARTY MUST PAY THE CONTRACTED
 COMPENSATION OR THE MECHANISM BY WHICH SUCH DATE WILL BE DETERMINED; AND
   (IV) THE DATE BY WHICH A  FREELANCE  WORKER  MUST  SUBMIT  A  LIST  OF
 SERVICES  RENDERED  UNDER  SUCH CONTRACT TO THE HIRING PARTY IN ORDER TO
 MEET ANY INTERNAL PROCESSING DEADLINES OF  SUCH  HIRING  PARTY  FOR  THE
 PURPOSES  OF  COMPENSATION BEING TIMELY RENDERED BY THE AGREED-UPON DATE
 AS STIPULATED IN SUBPARAGRAPH (III) OF THIS PARAGRAPH.
 S. 8369--A                          3
 
   (C) THE COMMISSIONER MAY BY RULE REQUIRE ADDITIONAL  TERMS  TO  ENSURE
 THAT  THE  FREELANCE  WORKER AND THE HIRING PARTY UNDERSTAND THEIR OBLI-
 GATIONS UNDER THE CONTRACT.
   (D)  SUCH  HIRING  PARTY SHALL BE REQUIRED TO KEEP SUCH CONTRACT FOR A
 PERIOD OF NO LESS THAN SIX YEARS AND SHALL MAKE SUCH CONTRACT  AVAILABLE
 TO  THE  COMMISSIONER  UPON  REQUEST.  THE  FAILURE OF A HIRING PARTY TO
 PRODUCE SUCH CONTRACT, UPON REQUEST OF THE COMMISSIONER, SHALL GIVE RISE
 TO A PRESUMPTION THAT THE TERMS THAT THE FREELANCE WORKER HAS  PRESENTED
 ARE THE AGREED UPON TERMS.
   3-A.  THE  COMMISSIONER  SHALL  MAKE  AVAILABLE MODEL CONTRACTS ON THE
 WEBSITE OF THE DEPARTMENT FOR USE BY THE GENERAL PUBLIC AT NO COST. SUCH
 MODEL CONTRACTS SHALL BE MADE AVAILABLE IN ENGLISH  AND  IN  THE  TWELVE
 LANGUAGES MOST COMMONLY SPOKEN BY LIMITED ENGLISH PROFICIENT INDIVIDUALS
 IN THE STATE.
   4.  NO  HIRING  PARTY,  AS DEFINED IN THIS   SECTION,  SHALL THREATEN,
 INTIMIDATE, DISCIPLINE, HARASS, DENY A WORK OPPORTUNITY TO, OR DISCRIMI-
 NATE AGAINST A  FREELANCE WORKER,  OR TAKE ANY OTHER ACTION THAT  PENAL-
 IZES  A  FREELANCE  WORKER FOR, OR IS REASONABLY LIKELY TO DETER A FREE-
 LANCE WORKER FROM, EXERCISING   OR ATTEMPTING   TO  EXERCISE  ANY  RIGHT
 GUARANTEED  UNDER THIS ARTICLE, OR FROM OBTAINING ANY FUTURE WORK OPPOR-
 TUNITY BECAUSE THE FREELANCE  WORKER  HAS DONE SO.
   5. (A) ANY FREELANCE WORKER OR HIS OR  HER  AUTHORIZED  REPRESENTATIVE
 MAY FILE WITH THE COMMISSIONER A COMPLAINT REGARDING A VIOLATION OF THIS
 ARTICLE FOR AN INVESTIGATION OF SUCH COMPLAINT AND STATEMENT SETTING THE
 APPROPRIATE  REMEDY,  IF  ANY.  THE COMMISSIONER SHALL KEEP THE NAMES OF
 FREELANCE WORKERS WHO ARE THE SUBJECT OF AN  INVESTIGATION  CONFIDENTIAL
 UNTIL SUCH TIME THAT DISCLOSURE IS NECESSARY FOR RESOLUTION OF AN INVES-
 TIGATION  OR  A  COMPLAINT.  FAILURE  OF A HIRING PARTY TO KEEP ADEQUATE
 RECORDS OR PROVIDE A WRITTEN CONTRACT AS REQUIRED UNDER THIS SECTION, IN
 ADDITION TO EXPOSING SUCH HIRING PARTY  TO  PENALTIES  AUTHORIZED  UNDER
 THIS  SECTION,  SHALL NOT OPERATE AS A BAR TO FILING OF A COMPLAINT BY A
 FREELANCE WORKER. IN SUCH A CASE THE HIRING  PARTY  IN  VIOLATION  SHALL
 BEAR  THE  BURDEN  OF  PROVING THAT THE COMPLAINING EMPLOYEE WAS PAID IN
 ACCORDANCE WITH THIS SECTION.
   (B) EACH FREELANCE WORKER WHO FILES A COMPLAINT REGARDING A  VIOLATION
 OF  THIS  ARTICLE OR A RULE OR REGULATION PROMULGATED THEREUNDER,  SHALL
 BE  PROVIDED  WITH  A  WRITTEN  DESCRIPTION  OF   THE ANTICIPATED  PROC-
 ESSING  OF  THE COMPLAINT, INCLUDING   INVESTIGATION,   CASE CONFERENCE,
 POTENTIAL  CIVIL  AND  CRIMINAL  PENALTIES,  AND COLLECTION PROCEDURES.
   (I) EACH FREELANCE WORKER AND HIS OR HER   AUTHORIZED   REPRESENTATIVE
 SHALL    BE NOTIFIED IN WRITING OF ANY CASE CONFERENCE BEFORE IT IS HELD
 AND GIVEN THE OPPORTUNITY TO ATTEND.
   (II) EACH FREELANCE WORKER AND HIS OR HER  AUTHORIZED   REPRESENTATIVE
 SHALL    BE   NOTIFIED   IN WRITING OF ANY AWARD AND COLLECTION OF CIVIL
 PENALTIES.
   6. THE COMMISSIONER  SHALL  HAVE  THE  FOLLOWING  DUTIES,  POWERS  AND
 AUTHORITY:
   (A) THE COMMISSIONER SHALL INVESTIGATE AND ATTEMPT TO ADJUST EQUITABLY
 CONTROVERSIES  BETWEEN  FREELANCE WORKERS AND HIRING PARTIES RELATING TO
 THIS  ARTICLE.
   (B) THE COMMISSIONER MAY TAKE ASSIGNMENTS OF CLAIMS  FOR  WAGES  UNDER
 THIS  ARTICLE  FROM FREELANCE WORKERS OR THIRD PARTIES IN TRUST FOR SUCH
 FREELANCE WORKERS OR FOR THE BENEFIT OF VARIOUS FUNDS FOR SUCH FREELANCE
 WORKERS. ALL SUCH ASSIGNMENTS SHALL RUN TO THE COMMISSIONER AND  HIS  OR
 HER SUCCESSOR IN OFFICE. THE COMMISSIONER MAY SUE HIRING PARTIES ON WAGE
 CLAIMS THUS ASSIGNED, WITH THE BENEFITS AND SUBJECT TO THE PROVISIONS OF
 S. 8369--A                          4
 
 EXISTING  LAW APPLYING TO ACTIONS BY FREELANCE WORKERS FOR COLLECTION OF
 WAGES. HE OR SHE MAY JOIN IN A SINGLE ACTION ANY NUMBER OF  WAGE  CLAIMS
 AGAINST THE SAME HIRING PARTY.
   (C)  (I)  THE COMMISSIONER IS HEREBY AUTHORIZED AND EMPOWERED TO ENTER
 INTO RECIPROCAL AGREEMENTS WITH THE LABOR  DEPARTMENT  OR  CORRESPONDING
 AGENCY OF ANY OTHER STATE OR WITH THE PERSON, BOARD, OFFICER, OR COMMIS-
 SION  AUTHORIZED  TO ACT ON BEHALF  OF  SUCH  DEPARTMENT OR  AGENCY, FOR
 THE COLLECTION IN SUCH OTHER STATES OF CLAIMS AND  JUDGMENTS  FOR  WAGES
 BASED UPON CLAIMS ASSIGNED TO THE COMMISSIONER.
   (II) THE COMMISSIONER MAY, TO THE EXTENT PROVIDED  FOR  BY  ANY RECIP-
 ROCAL  AGREEMENT ENTERED INTO BY LAW OR WITH ANY AGENCY OF ANOTHER STATE
 AS HEREIN PROVIDED, MAINTAIN ACTIONS IN THE COURTS OF SUCH  OTHER  STATE
 FOR THE COLLECTION OF CLAIMS AND JUDGMENTS FOR WAGES AND MAY ASSIGN SUCH
 CLAIMS  AND  JUDGMENTS  TO  THE LABOR DEPARTMENT OR AGENCY OF SUCH OTHER
 STATE FOR COLLECTION TO THE  EXTENT  THAT  SUCH  AN  ASSIGNMENT  MAY  BE
 PERMITTED  OR  PROVIDED  FOR  BY THE LAW OF  SUCH STATE OR BY RECIPROCAL
 AGREEMENT.
   (III) THE COMMISSIONER MAY, UPON THE  WRITTEN  CONSENT  OF  THE  LABOR
 DEPARTMENT  OR  OTHER  CORRESPONDING  AGENCY  OF  ANY  OTHER STATE OR OF
 ANY  PERSON,   BOARD, OFFICER, OR COMMISSION OF SUCH STATE AUTHORIZED TO
 ACT  ON  BEHALF  OF   SUCH   LABOR DEPARTMENT OR  CORRESPONDING  AGENCY,
 MAINTAIN  ACTIONS IN   THE COURTS OF THIS STATE UPON ASSIGNED CLAIMS AND
 JUDGMENTS  FOR  WAGES  ARISING  IN  SUCH  OTHER STATE IN THE SAME MANNER
 AND TO THE SAME EXTENT   THAT  SUCH  ACTIONS  BY  THE  COMMISSIONER  ARE
 AUTHORIZED  WHEN  ARISING  IN  THIS  STATE. HOWEVER, SUCH ACTIONS MAY BE
 MAINTAINED  ONLY  IN CASES WHERE   SUCH OTHER STATE BY LAW OR RECIPROCAL
 AGREEMENT EXTENDS A LIKE COMITY TO  CASES ARISING IN THIS STATE.
   (D) NOTHING IN  THIS  SECTION  SHALL   BE   CONSTRUED   AS   REQUIRING
 THE  COMMISSIONER   IN   EVERY  INSTANCE  TO  INVESTIGATE AND ATTEMPT TO
 ADJUST CONTROVERSIES, OR TO TAKE ASSIGNMENTS OF WAGE CLAIMS,   BUT HE OR
 SHE SHALL  BE DEEMED VESTED WITH DISCRETION IN SUCH MATTERS.
   7. (A) (I) A FREELANCE WORKER ALLEGING A VIOLATION OF THIS ARTICLE MAY
 BRING AN ACTION IN ANY COURT OF COMPETENT JURISDICTION FOR DAMAGES.
   (II) ANY ACTION ALLEGING A VIOLATION  OF  SUBDIVISION  THREE  OF  THIS
 SECTION SHALL BE BROUGHT WITHIN TWO YEARS AFTER THE ACTS ALLEGED TO HAVE
 VIOLATED THIS ARTICLE OCCURRED.
   (III)  ANY  ACTION  ALLEGING  A  VIOLATION  OF SUBDIVISION TWO OF THIS
 SECTION OR SUBDIVISION FOUR OF THIS SECTION SHALL BE BROUGHT WITHIN  SIX
 YEARS AFTER THE ACTS ALLEGED TO HAVE VIOLATED THIS ARTICLE OCCURRED.
   (IV) WITHIN TEN DAYS AFTER HAVING COMMENCED A CIVIL ACTION PURSUANT TO
 THIS  SUBDIVISION,  A PLAINTIFF SHALL SERVE A COPY OF THE COMPLAINT UPON
 AN AUTHORIZED REPRESENTATIVE OF THE COMMISSIONER. FAILURE TO SO SERVE  A
 COMPLAINT DOES NOT ADVERSELY AFFECT ANY PLAINTIFF'S CAUSE OF ACTION.
   (V) A PLAINTIFF WHO SOLELY ALLEGES A VIOLATION OF SUBDIVISION THREE OF
 THIS SECTION MUST PROVE THAT SUCH PLAINTIFF REQUESTED A WRITTEN CONTRACT
 BEFORE THE CONTRACTED WORK BEGAN.
   (B)  (I)  A  PLAINTIFF WHO PREVAILS ON A CLAIM ALLEGING A VIOLATION OF
 SUBDIVISION TWO OF THIS SECTION SHALL BE AWARDED DAMAGES AS DESCRIBED IN
 THIS SUBDIVISION AND AN AWARD OF REASONABLE ATTORNEYS' FEES AND COSTS.
   (II) (A) A PLAINTIFF WHO PREVAILS ON A CLAIM ALLEGING A  VIOLATION  OF
 SUBDIVISION  THREE OF THIS SECTION SHALL BE AWARDED STATUTORY DAMAGES OF
 TWO HUNDRED FIFTY DOLLARS.
   (B) A PLAINTIFF WHO PREVAILS ON A CLAIM ALLEGING A VIOLATION  OF  THIS
 SECTION AND ON ONE OR MORE CLAIMS UNDER OTHER PROVISIONS OF THIS ARTICLE
 SHALL  BE AWARDED STATUTORY DAMAGES EQUAL TO THE VALUE OF THE UNDERLYING
 S. 8369--A                          5

 CONTRACT FOR THE VIOLATION IN ADDITION TO THE REMEDIES SPECIFIED IN THIS
 ARTICLE FOR SUCH OTHER VIOLATIONS.
   (III) IN ADDITION TO OTHER DAMAGES AWARDED PURSUANT TO THIS ARTICLE, A
 PLAINTIFF  WHO  PREVAILS  ON A CLAIM ALLEGING A VIOLATION OF SUBDIVISION
 TWO OF THIS SECTION IS ENTITLED TO AN AWARD OF DOUBLE  DAMAGES,  INJUNC-
 TIVE RELIEF, AND OTHER SUCH REMEDIES AS MAY BE APPROPRIATE.
   (IV)  IN  ADDITION TO ANY OTHER DAMAGES AWARDED PURSUANT TO THIS ARTI-
 CLE, A PLAINTIFF WHO PREVAILS ON A CLAIM ALLEGING A VIOLATION OF  SUBDI-
 VISION  FOUR  OF  THIS SECTION IS ENTITLED TO STATUTORY DAMAGES EQUAL TO
 THE VALUE OF THE UNDERLYING CONTRACT FOR EACH  VIOLATION  ARISING  UNDER
 SUCH SUBDIVISION.
   8. (A)(I) WHERE REASONABLE CAUSE EXISTS TO BELIEVE THAT A HIRING PARTY
 IS  ENGAGED  IN A PATTERN OR PRACTICE OF VIOLATIONS OF THIS ARTICLE, THE
 ATTORNEY GENERAL MAY COMMENCE A CIVIL ACTION ON BEHALF OF THE STATE IN A
 COURT OF COMPETENT JURISDICTION.
   (II) AN ACTION PURSUANT TO SUBPARAGRAPH (I) OF THIS PARAGRAPH SHALL BE
 COMMENCED BY FILING A COMPLAINT SETTING FORTH  FACTS  RELATING  TO  SUCH
 PATTERN  OR PRACTICE AND REQUESTING RELIEF, WHICH MAY INCLUDE INJUNCTIVE
 RELIEF, CIVIL PENALTIES, AND ANY OTHER APPROPRIATE RELIEF.
   (III) NOTHING IN THIS PARAGRAPH PROHIBITS:
   (A) A PERSON ALLEGING A VIOLATION OF THIS ARTICLE FROM FILING A  CIVIL
 ACTION BASED ON THE SAME FACTS AS A CIVIL ACTION COMMENCED BY THE ATTOR-
 NEY GENERAL PURSUANT TO THIS SECTION; OR
   (B) THE COMMISSIONER FROM SENDING A NOTICE OF COMPLAINT, UNLESS OTHER-
 WISE BARRED FROM DOING SO.
   (B)  IN  ANY  CIVIL ACTION COMMENCED PURSUANT TO THIS SUBDIVISION, THE
 TRIER OF FACT MAY IMPOSE A CIVIL PENALTY OF NOT  MORE  THAN  TWENTY-FIVE
 THOUSAND  DOLLARS  FOR  A  FINDING  THAT A HIRING PARTY HAS ENGAGED IN A
 PATTERN OR PRACTICE OF VIOLATIONS OF THIS ARTICLE. ANY CIVIL PENALTY  SO
 RECOVERED SHALL BE PAID INTO THE GENERAL FUND.
   9.  (A)  EXCEPT  AS  OTHERWISE  PROVIDED  BY  LAW,  ANY PROVISION OF A
 CONTRACT PURPORTING TO WAIVE  RIGHTS  UNDER  THIS  SECTION  IS  VOID  AS
 AGAINST PUBLIC POLICY.
   (B)  THE PROVISIONS OF THIS SECTION SUPPLEMENT, AND DO NOT DIMINISH OR
 REPLACE, ANY OTHER BASIS OF  LIABILITY  OR  REQUIREMENT  ESTABLISHED  BY
 STATUTE OR COMMON LAW.
   (C)  FAILURE  TO  COMPLY  WITH THE PROVISIONS OF THIS SECTION DOES NOT
 RENDER ANY CONTRACT BETWEEN A HIRING PARTY AND A FREELANCE  WORKER  VOID
 OR  VOIDABLE  OR OTHERWISE IMPAIR ANY OBLIGATION, CLAIM OR RIGHT RELATED
 TO SUCH CONTRACT OR CONSTITUTE A DEFENSE TO ANY ACTION OR PROCEEDING  TO
 ENFORCE, OR FOR BREACH OF, SUCH CONTRACT.
   (D)  NO  PROVISION OF THIS SECTION RELATING TO FREELANCE WORKERS SHALL
 BE CONSTRUED AS PROVIDING A DETERMINATION ABOUT THE LEGAL CLASSIFICATION
 OF ANY SUCH WORKER AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR.
   10. THE DEPARTMENT SHALL CONDUCT A PUBLIC AWARENESS OUTREACH CAMPAIGN,
 WHICH SHALL INCLUDE MAKING INFORMATION AVAILABLE ON ITS WEBSITE,  OTHER-
 WISE  INFORMING  HIRING  PARTIES  OF THE PROVISIONS OF THIS SECTION, AND
 ESTABLISHING A MEANS FOR ASSISTANCE BY A NATURAL  PERSON  THROUGH  PHONE
 AND E-MAIL.
   11.    (A)  NO LATER THAN SIX MONTHS AFTER THE COMMISSIONER SENDS TO A
 FREELANCE WORKER EITHER A HIRING PARTY'S RESPONSE AND ACCOMPANYING MATE-
 RIALS OR A NOTICE OF NON-RESPONSE PURSUANT TO SECTION ONE HUNDRED  NINE-
 TY-SIX-A  OF  THIS  ARTICLE,  THE  COMMISSIONER SHALL SEND THE FREELANCE
 WORKER A SURVEY REQUESTING ADDITIONAL INFORMATION ABOUT  THE  RESOLUTION
 OF  THE  FREELANCE WORKER'S CLAIMS. SUCH SURVEY SHALL ASK WHETHER OR NOT
 THE FREELANCE WORKER PURSUED ANY SUCH CLAIMS  IN  COURT  OR  THROUGH  AN
 S. 8369--A                          6
 
 ALTERNATIVE  DISPUTE  RESOLUTION  PROCESS  AND WHETHER OR NOT THE HIRING
 PARTY ULTIMATELY PAID ANY OR ALL OF THE COMPENSATION THE FREELANCE WORK-
 ER ALLEGED WAS DUE OR IF THE MATTER WAS RESOLVED IN A DIFFERENT  MANNER.
 SUCH  SURVEY  SHALL  STATE CLEARLY THAT RESPONSE TO THE SURVEY IS VOLUN-
 TARY.
   (B)  THE  COMMISSIONER  SHALL  COLLECT  AND  TRACK  INFORMATION  ABOUT
 COMPLAINTS   ALLEGING   VIOLATIONS  OF  THIS  ARTICLE.  THE  INFORMATION
 COLLECTED SHALL INCLUDE, AT MINIMUM:
   (I) THE IDENTITY OF THE HIRING PARTY ALLEGED  TO  HAVE  VIOLATED  THIS
 ARTICLE;
   (II) THE FREELANCE WORKER'S OCCUPATION;
   (III)  THE  SECTION  OF  THIS  ARTICLE  THAT  WAS ALLEGED TO HAVE BEEN
 VIOLATED;
   (IV) THE VALUE OF THE CONTRACT;
   (V) THE RESPONSE OR NON-RESPONSE FROM THE HIRING PARTY; AND
   (VI) INFORMATION FROM A COMPLETED SURVEY IDENTIFIED IN  PARAGRAPH  (A)
 OF THIS SUBDIVISION.
   (C) ONE YEAR AFTER THE EFFECTIVE DATE OF THIS SECTION, AND EVERY FIFTH
 YEAR  THEREAFTER BY NOVEMBER FIRST, THE COMMISSIONER SHALL SUBMIT TO THE
 LEGISLATURE AND PUBLISH ON ITS WEBSITE A REPORT REGARDING THE EFFECTIVE-
 NESS OF THE APPLICABLE PROVISIONS OF THIS ARTICLE AT IMPROVING FREELANCE
 CONTRACTING AND PAYMENT PRACTICES.   SUCH REPORT  SHALL  INCLUDE,  AT  A
 MINIMUM:
   (I) THE NUMBER OF COMPLAINTS THE COMMISSIONER HAS RECEIVED PURSUANT TO
 SUCH PROVISIONS;
   (II)  THE  VALUE  OF  THE  CONTRACTS DISAGGREGATED INTO RANGES OF FIVE
 HUNDRED DOLLARS AND BY SECTION OF THIS  ARTICLE  ALLEGED  TO  HAVE  BEEN
 VIOLATED;
   (III)  THE  NUMBERS  OF  RESPONSES  AND  NON-RESPONSES RECEIVED BY THE
 COMMISSIONER DISAGGREGATED BY CONTRACT VALUE INTO RANGES OF FIVE HUNDRED
 DOLLARS AND BY SECTION OF THIS ARTICLE ALLEGED TO HAVE BEEN VIOLATED;
   (IV) THE PROPORTION OF SURVEYS RECEIVED FROM  FREELANCE  WORKERS  THAT
 INDICATE  THAT  THEY PURSUED THEIR CLAIMS IN COURT AND THE PROPORTION OF
 SURVEYS RECEIVED FROM FREELANCE WORKERS THAT INDICATE THAT THEY  PURSUED
 THEIR  CLAIMS  THROUGH  AN  ALTERNATIVE DISPUTE RESOLUTION PROCESS AND A
 SUMMARY OF THE OUTCOMES OF SUCH CASES; AND
   (V) LEGISLATIVE RECOMMENDATIONS, INCLUDING  CONSIDERATION  OF  WHETHER
 CERTAIN  OCCUPATIONS SHOULD BE EXEMPTED FROM THE SCOPE OF THE DEFINITION
 OF FREELANCE WORKER IN THIS SECTION.
   § 3. The provisions of this act shall not be construed or  interpreted
 to  override or supplant any of the provisions of chapter 10 of title 20
 of the administrative code of the city of New York.
   § 4. This act shall take effect on the one hundred eightieth day after
 it shall have become a law and shall apply  only  to  contracts  entered
 into  on  or after such effective date. Effective immediately, the addi-
 tion, amendment and/or repeal of any rules or regulations necessary  for
 the  implementation  of this act on its effective date are authorized to
 be made on or before such effective date.

Co-Sponsors

view additional co-sponsors

S8369B (ACTIVE) - Details

See Assembly Version of this Bill:: A9368
Law Section:: Labor Law
Laws Affected:: Add §191-d, Lab L
Versions Introduced in 2023-2024 Legislative Session:: S5026, A6040

S8369B (ACTIVE) - Summary

S8369B (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S8369B

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the labor law, in relation to enacting the "freelance
isn't free act"

 
PURPOSE OR GENERAL IDEA OF BILL:

To provide a recourse to freelance workers experiencing wage theft and
other violations under the Labor Law

 
SUMMARY OF PROVISIONS:

Section one of the bill names it the Freelance Isn't Free Act.

Section two of the bill adds a new section 191-d to the Labor Law.  This
section creates provisions related to the timely payment of freelance
workers, a right to a written contract from a hiring party, an adminis-
trative process for the Department of Labor to investigate complaints,
the ability of DOL to sue hiring parties on wage claims at their

discretion, a private right action for violations of this section with
damages levels, a right to no retaliation, a right of action for the
Attorney General for a pattern or practice of violations, a public
awareness outreach campaign, and a reporting requirement. Much of the
language in this new section 191-d in the Labor Law is drawn from exist-
ing language in Article 6 that provides wage theft protections for
traditional employees, creating parity between the two different types
of laborers.

Section three of the bill provides that the provisions of this act shall
not be construed to override or supplant chapter 10 of title 20 of the
New York City Administrative Code, establishing the NYC Freelance Isn't
Free Law.

Section four of the bill sets the effective date.

 
JUSTIFICATION:

On May 15th, 2017, New York City's Local Law 140 of 2016 establishing
the Freelance Isn't Free Act took effect. This landmark law, which
created basic labor protections for freelance workers such as the right
to a written contract, timely and full payment, and protection from
retaliation, has resulted in 1,191 cases filed with the NYC Department
of Consumer and Worker Protection (DCWP) in 2018 and 2019 alone, with
more than $1.3 million recovered in restitution and penalties. In 2020,
amidst the COVID lockdown, there were 490 complaints filed by freelance
workers, 450 for unlawful payment practices. In December of 2021, the
City filed its first lawsuit under the Act against L'Officiel USA, the
American subsidiary of a global magazine company that had demonstrated a
systemic pattern of failing to pay freelancers on time or at all.

These numbers clearly demonstrate what freelancers have always known to
be true: that independent contractors, not protected by the same minimum
wage laws as regular employees and generally ineligible for unemployment
and workers compensation, are some of the most exposed laborers in our
state when it comes to wage theft. Article 6 of the Labor Law, which
prohibits wage theft without exception for employees directly hired by
an employer, does not cover freelancers such as writers, editors, graph-
ic designers, videographers, consultants, temps, and those who are
otherwise self-employed. While New York City's Freelance Isn't Free Law
was a major point of progress for this vulnerable subset of the labor
force, NYC DCWP simply does not have the resources to properly handle
the thousands of cases that come across their radar every year. Further-
more, DCWP has no power to actually compel a hiring party to pay, forc-
ing freelance workers to resort to small claims court to enforce their
rights. Lastly, the city law covers only persons doing business with an
entity located in New York City, excluding freelancers in the rest of
the state.

This bill will replicate the labor rights of NYC's Freelance Isn't Free
Law in state Labor Law, adding administrative oversight and support from
DOL while maintaining the city's local law. It would mandate that any
hiring party across the state retaining a freelancer's services for at
least $250 provide such freelancer with a detailed written contract and
timely and full payment. The bill also includes an anti-retaliation
provision for the exercise of rights prescribed therein, and a cause of
action when any of the above obligations are not met. Additionally, NYS
DOL must provide model contracts as well as a non-judicial, administra-
tive process for resolving disputes between freelancers and hiring
parties. This bill replicates labor protections that already exist for
traditional employees covered under Article 6 in the Labor Law, creating
parity between employees hired onto a. payroll and freelancers hired
under a time-limited contract.

In establishing basic protections against some of the most pernicious
workplace practices, Freelance Isn't Free will help support a key compo-
nent of the modern workforce that is currently unprotected by state
Labor Law. It is the sponsor's belief that adding enforcement for Free-
lance Isn't Free at the state level, which already has a Division of
Labor Standards that handles wage theft claims for traditional employ-
ees, makes good administrative sense and will reduce the need for
aggrieved freelancers to file a claim in civil court. All laborers in
our state deserve the right to fair and timely pay, regardless of the
nature of the work, and bills such as the Freelance Isn't Free Act will
play a key role in holding hiring parties accountable to ensure this
reality.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
This bill shall take effect on the one hundred eightieth day after it
shall have become a law.

S8369B (ACTIVE) - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8369--B
 
                             I N  S E N A T E
 
                             February 17, 2022
                                ___________
 
 Introduced  by Sens. GOUNARDES, BIAGGI, CLEARE, HOYLMAN, JACKSON, KRUEG-
   ER, MYRIE, RAMOS, RIVERA, RYAN, SALAZAR, SEPULVEDA,  SKOUFIS  --  read
   twice  and  ordered  printed,  and when printed to be committed to the
   Committee on Labor --  reported  favorably  from  said  committee  and
   committed  to  the  Committee on Finance -- committee discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee  --  committee  discharged,  bill  amended,  ordered  reprinted as
   amended and recommitted to said committee
 
 AN ACT to amend the labor law, in relation to  enacting  the  "freelance
   isn't free act"
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Short title. This act shall be known and may  be  cited  as
 the "freelance isn't free act".
   § 2. The labor law is amended by adding a new section 191-d to read as
 follows:
   § 191-D. PAYMENT OF WAGES FOR FREELANCE WORKERS. 1.  (A) "CONSTRUCTION
 CONTRACTOR"  MEANS  ANY  PERSON,  SOLE  PROPRIETOR, PARTNERSHIP,   FIRM,
 CORPORATION,   LIMITED LIABILITY COMPANY,  ASSOCIATION  OR  OTHER  LEGAL
 ENTITY  WHO  BY  ONESELF OR THROUGH OTHERS OFFERS TO UNDERTAKE, OR HOLDS
 ONESELF   OUT AS BEING ABLE TO  UNDERTAKE,    OR    DOES  UNDERTAKE    A
 CONSTRUCTION PROJECT.
   (B) "CONSTRUCTION  PROJECT"  MEANS  THE  PROVIDING  OF  ANY  LABOR  OR
 SERVICES, AND THE USE OF ANY MATERIALS OR EQUIPMENT IN ORDER  TO  ALTER,
 BUILD, EXCAVATE, ADD TO, SUBTRACT FROM, IMPROVE, REPAIR, MAINTAIN, RENO-
 VATE, MOVE, WRECK OR DEMOLISH ANY BRIDGE, BUILDING, HIGHWAY, ROAD, RAIL-
 ROAD,  LAND, TUNNEL, SEWER, DRAINAGE OR OTHER STRUCTURE, PROJECT, DEVEL-
 OPMENT,  OR IMPROVEMENT, OR THE DOING OF ANY PART THEREOF, INCLUDING THE
 ERECTION OF SCAFFOLDING OR OTHER STRUCTURES OR WORKS IN CONNECTION THER-
 EWITH.
   (C) "FREELANCE  WORKER"  MEANS  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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD13843-13-2
 S. 8369--B                          2
 
 AMOUNT  EQUAL TO OR GREATER THAN EIGHT HUNDRED DOLLARS, EITHER BY ITSELF
 OR WHEN AGGREGATED WITH ALL CONTRACTS  FOR  SERVICES  BETWEEN  THE  SAME
 HIRING  PARTY  AND FREELANCE WORKER DURING THE IMMEDIATELY PRECEDING ONE
 HUNDRED TWENTY DAYS, BUT DOES NOT INCLUDE:
   (I)  ANY  PERSON  WHO,  PURSUANT  TO THE CONTRACT AT ISSUE, IS A SALES
 REPRESENTATIVE AS DEFINED IN SECTION ONE HUNDRED  NINETY-ONE-A  OF  THIS
 ARTICLE;
   (II)  ANY  PERSON  ENGAGED  IN  THE  PRACTICE  OF  LAW PURSUANT TO THE
 CONTRACT AT ISSUE AND WHO IS A MEMBER IN GOOD STANDING OF THE BAR OF THE
 HIGHEST COURT OF ANY STATE, POSSESSION, TERRITORY, COMMONWEALTH  OR  THE
 DISTRICT OF COLUMBIA AND WHO IS NOT UNDER ANY ORDER OF COURT SUSPENDING,
 ENJOINING,  RESTRAINING, DISBARRING OR OTHERWISE RESTRICTING SUCH PERSON
 IN THE PRACTICES OF LAW;
   (III) ANY PERSON WHO IS A LICENSED MEDICAL PROFESSIONAL; OR
   (IV) ANY PERSON WHO IS A CONSTRUCTION CONTRACTOR.
   (D) "HIRING PARTY" MEANS ANY PERSON WHO RETAINS A FREELANCE WORKER  TO
 PROVIDE ANY SERVICE, OTHER THAN:
   (I) THE UNITED STATES GOVERNMENT;
   (II)  THE STATE OF NEW YORK, INCLUDING ANY OFFICE, DEPARTMENT, AGENCY,
 AUTHORITY OR OTHER BODY OF THE STATE INCLUDING THE LEGISLATURE  AND  THE
 JUDICIARY;
   (III)  A  MUNICIPALITY,  INCLUDING  ANY  OFFICE, DEPARTMENT, AGENCY OR
 OTHER BODY OF A MUNICIPALITY; OR
   (IV) ANY FOREIGN GOVERNMENT.
   2. (A) EXCEPT AS OTHERWISE PROVIDED BY  LAW,  THE  CONTRACTED  COMPEN-
 SATION SHALL BE PAID TO A FREELANCE WORKER EITHER:
   (I)  ON OR BEFORE THE DATE SUCH COMPENSATION IS DUE UNDER THE TERMS OF
 THE CONTRACT; OR
   (II) IF THE CONTRACT DOES NOT SPECIFY WHEN THE HIRING PARTY  MUST  PAY
 THE  CONTRACTED COMPENSATION OR THE MECHANISM BY WHICH SUCH DATE WILL BE
 DETERMINED, NO LATER THAN THIRTY DAYS AFTER THE COMPLETION OF THE  FREE-
 LANCE WORKER'S SERVICES UNDER THE CONTRACT.
   (B)  ONCE A FREELANCE WORKER HAS COMMENCED PERFORMANCE OF THE SERVICES
 UNDER THE CONTRACT, THE HIRING PARTY SHALL NOT REQUIRE AS A CONDITION OF
 TIMELY PAYMENT THAT THE FREELANCE WORKER ACCEPT LESS  COMPENSATION  THAN
 THE AMOUNT OF THE CONTRACTED COMPENSATION.
   3.  (A)  WHENEVER  A  HIRING PARTY RETAINS THE SERVICES OF A FREELANCE
 WORKER, AS SUCH TERMS ARE DEFINED IN THIS SECTION, THE CONTRACT  BETWEEN
 SUCH PARTY AND WORKER SHALL BE REDUCED TO WRITING. THE HIRING PARTY MUST
 FURNISH  A COPY OF SUCH WRITTEN CONTRACT, EITHER PHYSICALLY OR ELECTRON-
 ICALLY, TO THE FREELANCE WORKER AND EACH PARTY TO THE  WRITTEN  CONTRACT
 SHALL RETAIN A COPY THEREOF.
   (B)  THE  WRITTEN  CONTRACT SHALL INCLUDE, AT A MINIMUM, THE FOLLOWING
 INFORMATION:
   (I) THE NAME AND MAILING ADDRESS OF BOTH  THE  HIRING  PARTY  AND  THE
 FREELANCE WORKER;
   (II)  AN  ITEMIZATION  OF ALL SERVICES TO BE PROVIDED BY THE FREELANCE
 WORKER, THE VALUE OF  THE  SERVICES  TO  BE  PROVIDED  PURSUANT  TO  THE
 CONTRACT, AND THE RATE AND METHOD OF COMPENSATION;
   (III)  THE  DATE  ON  WHICH  THE  HIRING PARTY MUST PAY THE CONTRACTED
 COMPENSATION OR THE MECHANISM BY WHICH SUCH DATE WILL BE DETERMINED; AND
   (IV) THE DATE BY WHICH A  FREELANCE  WORKER  MUST  SUBMIT  A  LIST  OF
 SERVICES  RENDERED  UNDER  SUCH CONTRACT TO THE HIRING PARTY IN ORDER TO
 MEET ANY INTERNAL PROCESSING DEADLINES OF  SUCH  HIRING  PARTY  FOR  THE
 PURPOSES  OF  COMPENSATION BEING TIMELY RENDERED BY THE AGREED-UPON DATE
 AS STIPULATED IN SUBPARAGRAPH (III) OF THIS PARAGRAPH.
 S. 8369--B                          3
 
   (C) THE COMMISSIONER MAY BY RULE REQUIRE ADDITIONAL  TERMS  TO  ENSURE
 THAT  THE  FREELANCE  WORKER AND THE HIRING PARTY UNDERSTAND THEIR OBLI-
 GATIONS UNDER THE CONTRACT.
   (D)  SUCH  HIRING  PARTY SHALL BE REQUIRED TO KEEP SUCH CONTRACT FOR A
 PERIOD OF NO LESS THAN SIX YEARS AND SHALL MAKE SUCH CONTRACT  AVAILABLE
 TO  THE  COMMISSIONER  UPON  REQUEST.  THE  FAILURE OF A HIRING PARTY TO
 PRODUCE SUCH CONTRACT, UPON REQUEST OF THE COMMISSIONER, SHALL GIVE RISE
 TO A PRESUMPTION THAT THE TERMS THAT THE FREELANCE WORKER HAS  PRESENTED
 ARE THE AGREED UPON TERMS.
   3-A.  THE  COMMISSIONER  SHALL  MAKE  AVAILABLE MODEL CONTRACTS ON THE
 WEBSITE OF THE DEPARTMENT FOR USE BY THE GENERAL PUBLIC AT NO COST. SUCH
 MODEL CONTRACTS SHALL BE MADE AVAILABLE IN ENGLISH  AND  IN  THE  TWELVE
 LANGUAGES MOST COMMONLY SPOKEN BY LIMITED ENGLISH PROFICIENT INDIVIDUALS
 IN THE STATE.
   4.  NO  HIRING  PARTY,  AS DEFINED IN THIS   SECTION,  SHALL THREATEN,
 INTIMIDATE, DISCIPLINE, HARASS, DENY A WORK OPPORTUNITY TO, OR DISCRIMI-
 NATE AGAINST A  FREELANCE WORKER,  OR TAKE ANY OTHER ACTION THAT  PENAL-
 IZES  A  FREELANCE  WORKER FOR, OR IS REASONABLY LIKELY TO DETER A FREE-
 LANCE WORKER FROM, EXERCISING   OR ATTEMPTING   TO  EXERCISE  ANY  RIGHT
 GUARANTEED  UNDER THIS ARTICLE, OR FROM OBTAINING ANY FUTURE WORK OPPOR-
 TUNITY BECAUSE THE FREELANCE  WORKER  HAS DONE SO.
   5. (A) ANY FREELANCE WORKER OR HIS OR  HER  AUTHORIZED  REPRESENTATIVE
 MAY FILE WITH THE COMMISSIONER A COMPLAINT REGARDING A VIOLATION OF THIS
 ARTICLE FOR AN INVESTIGATION OF SUCH COMPLAINT AND STATEMENT SETTING THE
 APPROPRIATE  REMEDY,  IF  ANY.  THE COMMISSIONER SHALL KEEP THE NAMES OF
 FREELANCE WORKERS WHO ARE THE SUBJECT OF AN  INVESTIGATION  CONFIDENTIAL
 UNTIL SUCH TIME THAT DISCLOSURE IS NECESSARY FOR RESOLUTION OF AN INVES-
 TIGATION  OR  A  COMPLAINT.  FAILURE  OF A HIRING PARTY TO KEEP ADEQUATE
 RECORDS OR PROVIDE A WRITTEN CONTRACT AS REQUIRED UNDER THIS SECTION, IN
 ADDITION TO EXPOSING SUCH HIRING PARTY  TO  PENALTIES  AUTHORIZED  UNDER
 THIS  SECTION,  SHALL NOT OPERATE AS A BAR TO FILING OF A COMPLAINT BY A
 FREELANCE WORKER. IN SUCH A CASE THE HIRING  PARTY  IN  VIOLATION  SHALL
 BEAR  THE  BURDEN  OF  PROVING THAT THE COMPLAINING EMPLOYEE WAS PAID IN
 ACCORDANCE WITH THIS SECTION.
   (B) EACH FREELANCE WORKER WHO FILES A COMPLAINT REGARDING A  VIOLATION
 OF  THIS  ARTICLE OR A RULE OR REGULATION PROMULGATED THEREUNDER,  SHALL
 BE  PROVIDED  WITH  A  WRITTEN  DESCRIPTION  OF   THE ANTICIPATED  PROC-
 ESSING  OF  THE COMPLAINT, INCLUDING   INVESTIGATION,   CASE CONFERENCE,
 POTENTIAL  CIVIL  AND  CRIMINAL  PENALTIES,  AND COLLECTION PROCEDURES.
   (I) EACH FREELANCE WORKER AND HIS OR HER   AUTHORIZED   REPRESENTATIVE
 SHALL    BE NOTIFIED IN WRITING OF ANY CASE CONFERENCE BEFORE IT IS HELD
 AND GIVEN THE OPPORTUNITY TO ATTEND.
   (II) EACH FREELANCE WORKER AND HIS OR HER  AUTHORIZED   REPRESENTATIVE
 SHALL    BE   NOTIFIED   IN WRITING OF ANY AWARD AND COLLECTION OF CIVIL
 PENALTIES.
   6. THE COMMISSIONER  SHALL  HAVE  THE  FOLLOWING  DUTIES,  POWERS  AND
 AUTHORITY:
   (A) THE COMMISSIONER SHALL INVESTIGATE AND ATTEMPT TO ADJUST EQUITABLY
 CONTROVERSIES  BETWEEN  FREELANCE WORKERS AND HIRING PARTIES RELATING TO
 THIS  ARTICLE.
   (B) THE COMMISSIONER MAY TAKE ASSIGNMENTS OF CLAIMS  FOR  WAGES  UNDER
 THIS  ARTICLE  FROM FREELANCE WORKERS OR THIRD PARTIES IN TRUST FOR SUCH
 FREELANCE WORKERS OR FOR THE BENEFIT OF VARIOUS FUNDS FOR SUCH FREELANCE
 WORKERS. ALL SUCH ASSIGNMENTS SHALL RUN TO THE COMMISSIONER AND  HIS  OR
 HER SUCCESSOR IN OFFICE. THE COMMISSIONER MAY SUE HIRING PARTIES ON WAGE
 CLAIMS THUS ASSIGNED, WITH THE BENEFITS AND SUBJECT TO THE PROVISIONS OF
 S. 8369--B                          4
 
 EXISTING  LAW APPLYING TO ACTIONS BY FREELANCE WORKERS FOR COLLECTION OF
 WAGES. HE OR SHE MAY JOIN IN A SINGLE ACTION ANY NUMBER OF  WAGE  CLAIMS
 AGAINST THE SAME HIRING PARTY.
   (C)  (I)  THE COMMISSIONER IS HEREBY AUTHORIZED AND EMPOWERED TO ENTER
 INTO RECIPROCAL AGREEMENTS WITH THE LABOR  DEPARTMENT  OR  CORRESPONDING
 AGENCY OF ANY OTHER STATE OR WITH THE PERSON, BOARD, OFFICER, OR COMMIS-
 SION  AUTHORIZED  TO ACT ON BEHALF  OF  SUCH  DEPARTMENT OR  AGENCY, FOR
 THE COLLECTION IN SUCH OTHER STATES OF CLAIMS AND  JUDGMENTS  FOR  WAGES
 BASED UPON CLAIMS ASSIGNED TO THE COMMISSIONER.
   (II) THE COMMISSIONER MAY, TO THE EXTENT PROVIDED  FOR  BY  ANY RECIP-
 ROCAL  AGREEMENT ENTERED INTO BY LAW OR WITH ANY AGENCY OF ANOTHER STATE
 AS HEREIN PROVIDED, MAINTAIN ACTIONS IN THE COURTS OF SUCH  OTHER  STATE
 FOR THE COLLECTION OF CLAIMS AND JUDGMENTS FOR WAGES AND MAY ASSIGN SUCH
 CLAIMS  AND  JUDGMENTS  TO  THE LABOR DEPARTMENT OR AGENCY OF SUCH OTHER
 STATE FOR COLLECTION TO THE  EXTENT  THAT  SUCH  AN  ASSIGNMENT  MAY  BE
 PERMITTED  OR  PROVIDED  FOR  BY THE LAW OF  SUCH STATE OR BY RECIPROCAL
 AGREEMENT.
   (III) THE COMMISSIONER MAY, UPON THE  WRITTEN  CONSENT  OF  THE  LABOR
 DEPARTMENT  OR  OTHER  CORRESPONDING  AGENCY  OF  ANY  OTHER STATE OR OF
 ANY  PERSON,   BOARD, OFFICER, OR COMMISSION OF SUCH STATE AUTHORIZED TO
 ACT  ON  BEHALF  OF   SUCH   LABOR DEPARTMENT OR  CORRESPONDING  AGENCY,
 MAINTAIN  ACTIONS IN   THE COURTS OF THIS STATE UPON ASSIGNED CLAIMS AND
 JUDGMENTS  FOR  WAGES  ARISING  IN  SUCH  OTHER STATE IN THE SAME MANNER
 AND TO THE SAME EXTENT   THAT  SUCH  ACTIONS  BY  THE  COMMISSIONER  ARE
 AUTHORIZED  WHEN  ARISING  IN  THIS  STATE. HOWEVER, SUCH ACTIONS MAY BE
 MAINTAINED  ONLY  IN CASES WHERE   SUCH OTHER STATE BY LAW OR RECIPROCAL
 AGREEMENT EXTENDS A LIKE COMITY TO  CASES ARISING IN THIS STATE.
   (D) NOTHING IN  THIS  SECTION  SHALL   BE   CONSTRUED   AS   REQUIRING
 THE  COMMISSIONER   IN   EVERY  INSTANCE  TO  INVESTIGATE AND ATTEMPT TO
 ADJUST CONTROVERSIES, OR TO TAKE ASSIGNMENTS OF WAGE CLAIMS,   BUT HE OR
 SHE SHALL  BE DEEMED VESTED WITH DISCRETION IN SUCH MATTERS.
   7. (A) (I) A FREELANCE WORKER ALLEGING A VIOLATION OF THIS ARTICLE MAY
 BRING AN ACTION IN ANY COURT OF COMPETENT JURISDICTION FOR DAMAGES.
   (II) ANY ACTION ALLEGING A VIOLATION  OF  SUBDIVISION  THREE  OF  THIS
 SECTION SHALL BE BROUGHT WITHIN TWO YEARS AFTER THE ACTS ALLEGED TO HAVE
 VIOLATED THIS ARTICLE OCCURRED.
   (III)  ANY  ACTION  ALLEGING  A  VIOLATION  OF SUBDIVISION TWO OF THIS
 SECTION OR SUBDIVISION FOUR OF THIS SECTION SHALL BE BROUGHT WITHIN  SIX
 YEARS AFTER THE ACTS ALLEGED TO HAVE VIOLATED THIS ARTICLE OCCURRED.
   (IV) WITHIN TEN DAYS AFTER HAVING COMMENCED A CIVIL ACTION PURSUANT TO
 THIS  SUBDIVISION,  A PLAINTIFF SHALL SERVE A COPY OF THE COMPLAINT UPON
 AN AUTHORIZED REPRESENTATIVE OF THE COMMISSIONER. FAILURE TO SO SERVE  A
 COMPLAINT DOES NOT ADVERSELY AFFECT ANY PLAINTIFF'S CAUSE OF ACTION.
   (V) A PLAINTIFF WHO SOLELY ALLEGES A VIOLATION OF SUBDIVISION THREE OF
 THIS SECTION MUST PROVE THAT SUCH PLAINTIFF REQUESTED A WRITTEN CONTRACT
 BEFORE THE CONTRACTED WORK BEGAN.
   (B)  (I)  A  PLAINTIFF WHO PREVAILS ON A CLAIM ALLEGING A VIOLATION OF
 SUBDIVISION TWO OF THIS SECTION SHALL BE AWARDED DAMAGES AS DESCRIBED IN
 THIS SUBDIVISION AND AN AWARD OF REASONABLE ATTORNEYS' FEES AND COSTS.
   (II) (A) A PLAINTIFF WHO PREVAILS ON A CLAIM ALLEGING A  VIOLATION  OF
 SUBDIVISION  THREE OF THIS SECTION SHALL BE AWARDED STATUTORY DAMAGES OF
 TWO HUNDRED FIFTY DOLLARS.
   (B) A PLAINTIFF WHO PREVAILS ON A CLAIM ALLEGING A VIOLATION  OF  THIS
 SECTION AND ON ONE OR MORE CLAIMS UNDER OTHER PROVISIONS OF THIS ARTICLE
 SHALL  BE AWARDED STATUTORY DAMAGES EQUAL TO THE VALUE OF THE UNDERLYING
 S. 8369--B                          5
 
 CONTRACT FOR THE VIOLATION IN ADDITION TO THE REMEDIES SPECIFIED IN THIS
 ARTICLE FOR SUCH OTHER VIOLATIONS.
   (III) IN ADDITION TO OTHER DAMAGES AWARDED PURSUANT TO THIS ARTICLE, A
 PLAINTIFF  WHO  PREVAILS  ON A CLAIM ALLEGING A VIOLATION OF SUBDIVISION
 TWO OF THIS SECTION IS ENTITLED TO AN AWARD OF DOUBLE  DAMAGES,  INJUNC-
 TIVE RELIEF, AND OTHER SUCH REMEDIES AS MAY BE APPROPRIATE.
   (IV)  IN  ADDITION TO ANY OTHER DAMAGES AWARDED PURSUANT TO THIS ARTI-
 CLE, A PLAINTIFF WHO PREVAILS ON A CLAIM ALLEGING A VIOLATION OF  SUBDI-
 VISION  FOUR  OF  THIS SECTION IS ENTITLED TO STATUTORY DAMAGES EQUAL TO
 THE VALUE OF THE UNDERLYING CONTRACT FOR EACH  VIOLATION  ARISING  UNDER
 SUCH SUBDIVISION.
   8. (A)(I) WHERE REASONABLE CAUSE EXISTS TO BELIEVE THAT A HIRING PARTY
 IS  ENGAGED  IN A PATTERN OR PRACTICE OF VIOLATIONS OF THIS ARTICLE, THE
 ATTORNEY GENERAL MAY COMMENCE A CIVIL ACTION ON BEHALF OF THE STATE IN A
 COURT OF COMPETENT JURISDICTION.
   (II) AN ACTION PURSUANT TO SUBPARAGRAPH (I) OF THIS PARAGRAPH SHALL BE
 COMMENCED BY FILING A COMPLAINT SETTING FORTH  FACTS  RELATING  TO  SUCH
 PATTERN  OR PRACTICE AND REQUESTING RELIEF, WHICH MAY INCLUDE INJUNCTIVE
 RELIEF, CIVIL PENALTIES, AND ANY OTHER APPROPRIATE RELIEF.
   (III) NOTHING IN THIS PARAGRAPH PROHIBITS:
   (A) A PERSON ALLEGING A VIOLATION OF THIS ARTICLE FROM FILING A  CIVIL
 ACTION BASED ON THE SAME FACTS AS A CIVIL ACTION COMMENCED BY THE ATTOR-
 NEY GENERAL PURSUANT TO THIS SECTION; OR
   (B) THE COMMISSIONER FROM SENDING A NOTICE OF COMPLAINT, UNLESS OTHER-
 WISE BARRED FROM DOING SO.
   (B)  IN  ANY  CIVIL ACTION COMMENCED PURSUANT TO THIS SUBDIVISION, THE
 TRIER OF FACT MAY IMPOSE A CIVIL PENALTY OF NOT  MORE  THAN  TWENTY-FIVE
 THOUSAND  DOLLARS  FOR  A  FINDING  THAT A HIRING PARTY HAS ENGAGED IN A
 PATTERN OR PRACTICE OF VIOLATIONS OF THIS ARTICLE. ANY CIVIL PENALTY  SO
 RECOVERED SHALL BE PAID INTO THE GENERAL FUND.
   9.  (A)  EXCEPT  AS  OTHERWISE  PROVIDED  BY  LAW,  ANY PROVISION OF A
 CONTRACT PURPORTING TO WAIVE  RIGHTS  UNDER  THIS  SECTION  IS  VOID  AS
 AGAINST PUBLIC POLICY.
   (B)  THE PROVISIONS OF THIS SECTION SUPPLEMENT, AND DO NOT DIMINISH OR
 REPLACE, ANY OTHER BASIS OF  LIABILITY  OR  REQUIREMENT  ESTABLISHED  BY
 STATUTE OR COMMON LAW.
   (C)  FAILURE  TO  COMPLY  WITH THE PROVISIONS OF THIS SECTION DOES NOT
 RENDER ANY CONTRACT BETWEEN A HIRING PARTY AND A FREELANCE  WORKER  VOID
 OR  VOIDABLE  OR OTHERWISE IMPAIR ANY OBLIGATION, CLAIM OR RIGHT RELATED
 TO SUCH CONTRACT OR CONSTITUTE A DEFENSE TO ANY ACTION OR PROCEEDING  TO
 ENFORCE, OR FOR BREACH OF, SUCH CONTRACT.
   (D)  NO  PROVISION OF THIS SECTION RELATING TO FREELANCE WORKERS SHALL
 BE CONSTRUED AS PROVIDING A DETERMINATION ABOUT THE LEGAL CLASSIFICATION
 OF ANY SUCH WORKER AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR.
   10. THE DEPARTMENT SHALL CONDUCT A PUBLIC AWARENESS OUTREACH CAMPAIGN,
 WHICH SHALL INCLUDE MAKING INFORMATION AVAILABLE ON ITS WEBSITE,  OTHER-
 WISE  INFORMING  HIRING  PARTIES  OF THE PROVISIONS OF THIS SECTION, AND
 ESTABLISHING A MEANS FOR ASSISTANCE BY A NATURAL  PERSON  THROUGH  PHONE
 AND E-MAIL.
   11.    (A)  NO LATER THAN SIX MONTHS AFTER THE COMMISSIONER SENDS TO A
 FREELANCE WORKER EITHER A HIRING PARTY'S RESPONSE AND ACCOMPANYING MATE-
 RIALS OR A NOTICE OF NON-RESPONSE PURSUANT TO SECTION ONE HUNDRED  NINE-
 TY-SIX-A  OF  THIS  ARTICLE,  THE  COMMISSIONER SHALL SEND THE FREELANCE
 WORKER A SURVEY REQUESTING ADDITIONAL INFORMATION ABOUT  THE  RESOLUTION
 OF  THE  FREELANCE WORKER'S CLAIMS. SUCH SURVEY SHALL ASK WHETHER OR NOT
 THE FREELANCE WORKER PURSUED ANY SUCH CLAIMS  IN  COURT  OR  THROUGH  AN
 S. 8369--B                          6
 
 ALTERNATIVE  DISPUTE  RESOLUTION  PROCESS  AND WHETHER OR NOT THE HIRING
 PARTY ULTIMATELY PAID ANY OR ALL OF THE COMPENSATION THE FREELANCE WORK-
 ER ALLEGED WAS DUE OR IF THE MATTER WAS RESOLVED IN A DIFFERENT  MANNER.
 SUCH  SURVEY  SHALL  STATE CLEARLY THAT RESPONSE TO THE SURVEY IS VOLUN-
 TARY.
   (B)  THE  COMMISSIONER  SHALL  COLLECT  AND  TRACK  INFORMATION  ABOUT
 COMPLAINTS   ALLEGING   VIOLATIONS  OF  THIS  ARTICLE.  THE  INFORMATION
 COLLECTED SHALL INCLUDE, AT MINIMUM:
   (I) THE IDENTITY OF THE HIRING PARTY ALLEGED  TO  HAVE  VIOLATED  THIS
 ARTICLE;
   (II) THE FREELANCE WORKER'S OCCUPATION;
   (III)  THE  SECTION  OF  THIS  ARTICLE  THAT  WAS ALLEGED TO HAVE BEEN
 VIOLATED;
   (IV) THE VALUE OF THE CONTRACT;
   (V) THE RESPONSE OR NON-RESPONSE FROM THE HIRING PARTY; AND
   (VI) INFORMATION FROM A COMPLETED SURVEY IDENTIFIED IN  PARAGRAPH  (A)
 OF THIS SUBDIVISION.
   (C) ONE YEAR AFTER THE EFFECTIVE DATE OF THIS SECTION, AND EVERY FIFTH
 YEAR  THEREAFTER BY NOVEMBER FIRST, THE COMMISSIONER SHALL SUBMIT TO THE
 LEGISLATURE AND PUBLISH ON ITS WEBSITE A REPORT REGARDING THE EFFECTIVE-
 NESS OF THE APPLICABLE PROVISIONS OF THIS ARTICLE AT IMPROVING FREELANCE
 CONTRACTING AND PAYMENT PRACTICES.   SUCH REPORT  SHALL  INCLUDE,  AT  A
 MINIMUM:
   (I) THE NUMBER OF COMPLAINTS THE COMMISSIONER HAS RECEIVED PURSUANT TO
 SUCH PROVISIONS;
   (II)  THE  VALUE  OF  THE  CONTRACTS DISAGGREGATED INTO RANGES OF FIVE
 HUNDRED DOLLARS AND BY SECTION OF THIS  ARTICLE  ALLEGED  TO  HAVE  BEEN
 VIOLATED;
   (III)  THE  NUMBERS  OF  RESPONSES  AND  NON-RESPONSES RECEIVED BY THE
 COMMISSIONER DISAGGREGATED BY CONTRACT VALUE INTO RANGES OF FIVE HUNDRED
 DOLLARS AND BY SECTION OF THIS ARTICLE ALLEGED TO HAVE BEEN VIOLATED;
   (IV) THE PROPORTION OF SURVEYS RECEIVED FROM  FREELANCE  WORKERS  THAT
 INDICATE  THAT  THEY PURSUED THEIR CLAIMS IN COURT AND THE PROPORTION OF
 SURVEYS RECEIVED FROM FREELANCE WORKERS THAT INDICATE THAT THEY  PURSUED
 THEIR  CLAIMS  THROUGH  AN  ALTERNATIVE DISPUTE RESOLUTION PROCESS AND A
 SUMMARY OF THE OUTCOMES OF SUCH CASES; AND
   (V) LEGISLATIVE RECOMMENDATIONS, INCLUDING  CONSIDERATION  OF  WHETHER
 CERTAIN  OCCUPATIONS SHOULD BE EXEMPTED FROM THE SCOPE OF THE DEFINITION
 OF FREELANCE WORKER IN THIS SECTION.
   § 3. The provisions of this act shall not be construed or  interpreted
 to  override or supplant any of the provisions of chapter 10 of title 20
 of the administrative code of the city of New York.
   § 4. This act shall take effect on the one hundred eightieth day after
 it shall have become a law and shall apply  only  to  contracts  entered
 into  on  or after such effective date. Effective immediately, the addi-
 tion, amendment and/or repeal of any rules or regulations necessary  for
 the  implementation  of this act on its effective date are authorized to
 be made on or before such effective date.

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The New York State Senate

senate Bill S8369B

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Archive: Last Bill Status - Vetoed by Governor

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Votes

Jun 1, 2022 - floor Vote

Floor Vote: Jun 1, 2022

Jun 1, 2022 - Rules committee Vote

Rules Committee Vote: Jun 1, 2022

May 10, 2022 - Labor committee Vote

Committee Vote: May 10, 2022

Bill Amendments

Co-Sponsors

S8369 - Details

S8369 - Summary

S8369 - Sponsor Memo

S8369 - Bill Text download pdf

Co-Sponsors

S8369A - Details

S8369A - Summary

S8369A - Sponsor Memo

S8369A - Bill Text download pdf

Co-Sponsors

S8369B (ACTIVE) - Details

S8369B (ACTIVE) - Summary

S8369B (ACTIVE) - Sponsor Memo

S8369B (ACTIVE) - Bill Text download pdf

Comments

senate Bill S8369B

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Sponsored By

Archive: Last Bill Status - Vetoed by Governor

Your Voice

Actions

Votes

Jun 1, 2022 - floor Vote

Floor Vote: Jun 1, 2022

Jun 1, 2022 - Rules committee Vote

Rules Committee Vote: Jun 1, 2022

May 10, 2022 - Labor committee Vote

Committee Vote: May 10, 2022

Bill Amendments

Co-Sponsors

S8369 - Details

S8369 - Summary

S8369 - Sponsor Memo

S8369 - Bill Text download pdf

Co-Sponsors

S8369A - Details

S8369A - Summary

S8369A - Sponsor Memo

S8369A - Bill Text download pdf

Co-Sponsors

S8369B (ACTIVE) - Details

S8369B (ACTIVE) - Summary

S8369B (ACTIVE) - Sponsor Memo

S8369B (ACTIVE) - Bill Text download pdf

Comments