Bill Text: NY S08039 | 2023-2024 | General Assembly | Introduced
Bill Title: Relates to contracted compensation payments; 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.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2024-03-01 - SIGNED CHAP.98 [S08039 Detail]
Download: New_York-2023-S08039-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8039 IN SENATE January 5, 2024 ___________ Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the general business law, in relation to contracted compensation payments; and to repeal section 191-d of the labor law The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 191-d of the labor law, as added by a chapter of 2 the laws of 2023 amending the labor law constituting the freelance isn't 3 free act, as proposed in legislative bills numbers S. 5026 and A. 6040, 4 is REPEALED. 5 § 2. The general business law is amended by adding a new article 44-A 6 to read as follows: 7 ARTICLE 44-A 8 FREELANCE ISN'T FREE ACT 9 Section 1410. Definitions. 10 1411. Contracted compensation payments. 11 1412. Written contracts. 12 1413. Discrimination Prohibited. 13 1414. Violations. 14 1415. Additional rights. 15 § 1410. Definitions. As used in this article, the following terms 16 shall have the following meanings: 17 1. "Construction contractor" means any person, sole proprietor, part- 18 nership, firm, corporation, limited liability company, association or 19 other legal entity who by oneself or through others offers to undertake, 20 or holds oneself out as being able to undertake, or does undertake a 21 construction project. 22 2. "Construction project" means the providing of any labor or 23 services, and the use of any materials or equipment in order to alter, 24 build, excavate, add to, subtract from, improve, repair, maintain, reno- 25 vate, move, wreck or demolish any bridge, building, highway, road, rail- 26 road, land, tunnel, sewer, drainage or other structure, project, devel- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04464-02-4S. 8039 2 1 opment, or improvement, or the doing of any part thereof, including the 2 erection of scaffolding or other structures or works in connection ther- 3 ewith. 4 3. "Freelance worker" means any natural person or organization 5 composed of no more than one natural person, whether or not incorporated 6 or employing a trade name, that is hired or retained as an independent 7 contractor by a hiring party to provide services in exchange for an 8 amount equal to or greater than eight hundred dollars, either by itself 9 or when aggregated with all contracts for services between the same 10 hiring party and freelance worker during the immediately preceding one 11 hundred twenty days, but does not include: 12 (a) any person who, pursuant to the contract at issue, is a sales 13 representative as defined in section one hundred ninety-one-a of the 14 labor law; 15 (b) any person engaged in the practice of law pursuant to the contract 16 at issue and who is a member in good standing of the bar of the highest 17 court of any state, possession, territory, commonwealth or the District 18 of Columbia and who is not under any order of court suspending, enjoin- 19 ing, restraining, disbarring or otherwise restricting such person in the 20 practices of law; 21 (c) any person who is a licensed medical professional; or 22 (d) any person who is a construction contractor. 23 4. "Hiring party" means any person who retains a freelance worker to 24 provide any service, other than: 25 (a) the United States government; 26 (b) the state of New York, including any office, department, agency, 27 authority or other body of the state including the legislature and the 28 judiciary; 29 (c) a municipality, including any office, department, agency or other 30 body of a municipality; or 31 (d) any foreign government. 32 § 1411. Contracted compensation payments. 1. Except as otherwise 33 provided by law, the contracted compensation shall be paid to a free- 34 lance worker either: 35 (a) on or before the date such compensation is due under the terms of 36 the contract; or 37 (b) if the contract does not specify when the hiring party must pay 38 the contracted compensation or the mechanism by which such date will be 39 determined, no later than thirty days after the completion of the free- 40 lance worker's services under the contract. 41 2. Once a freelance worker has commenced performance of the services 42 under the contract, the hiring party shall not require as a condition of 43 timely payment that the freelance worker accept less compensation than 44 the amount of the contracted compensation. 45 § 1412. Written contracts. 1. Whenever a hiring party retains the 46 services of a freelance worker, as such terms are defined in this arti- 47 cle, the contract between such party and worker shall be reduced to 48 writing. The hiring party must furnish a copy of such written contract, 49 either physically or electronically, to the freelance worker and each 50 party to the written contract shall retain a copy thereof. 51 2. The written contract shall include, at a minimum, the following 52 information: 53 (a) the name and mailing address of both the hiring party and the 54 freelance worker;S. 8039 3 1 (b) an itemization of all services to be provided by the freelance 2 worker, the value of the services to be provided pursuant to the 3 contract, and the rate and method of compensation; 4 (c) the date on which the hiring party must pay the contracted compen- 5 sation or the mechanism by which such date will be determined; and 6 (d) the date by which a freelance worker must submit a list of 7 services rendered under such contract to the hiring party in order to 8 meet any internal processing deadlines of such hiring party for the 9 purposes of compensation being timely rendered by the agreed-upon date 10 as stipulated in paragraph (c) of this subdivision. 11 3. Such hiring party shall be required to keep such contract for a 12 period of no less than six years and shall make such contract available 13 to the attorney general upon request. The failure of a hiring party to 14 maintain such contracts or produce such contracts to the attorney gener- 15 al shall give rise to a presumption that the terms that the freelance 16 worker has presented are the agreed upon terms. 17 4. The commissioner of labor shall make available model contracts on 18 the website of the department of labor for use by the general public at 19 no cost. Such model contracts shall be made available in English and in 20 the twelve languages most commonly spoken by limited English proficient 21 individuals in the state. 22 § 1413. Discrimination prohibited. No hiring party, as defined in this 23 article, shall threaten, intimidate, discipline, harass, deny a work 24 opportunity to, or discriminate against a freelance worker, or take any 25 other action that penalizes a freelance worker for, or is reasonably 26 likely to deter a freelance worker from, exercising or attempting to 27 exercise any right guaranteed under this article, or from obtaining any 28 future work opportunity because the freelance worker has done so. 29 § 1414. Violations. 1. The attorney general shall be authorized to 30 investigate complaints regarding a violation of this article and provide 31 appropriate remedies. Whenever the attorney general shall believe from 32 evidence satisfactory to them that any hiring party has engaged in or is 33 about to engage in any of the acts or practices stated to be unlawful 34 they may bring an action in the name and on behalf of the people of the 35 state of New York to enjoin such unlawful acts or practices and to 36 obtain restitution for one or more freelance workers of any moneys or 37 property obtained directly or indirectly by any such unlawful acts or 38 practices. In such action preliminary relief may be granted under arti- 39 cle sixty-three of the civil practice law and rules. In such action a 40 civil penalty in an amount not to exceed one thousand dollars for a 41 first violation, two thousand dollars for a second violation or three 42 thousand dollars for a third or subsequent violation may be sought by 43 the attorney general. 44 2. (a) A freelance worker alleging a violation of this article may 45 bring an action in any court of competent jurisdiction for damages. 46 (b) Any action alleging a violation of section fourteen hundred twelve 47 of this article shall be brought within two years after the acts alleged 48 to have violated this article occurred. 49 (c) Any action alleging a violation of section fourteen hundred eleven 50 of this article or section fourteen hundred thirteen of this article 51 shall be brought within six years after the acts alleged to have 52 violated this article occurred. 53 (d) Within ten days after having commenced a civil action pursuant to 54 this subdivision, a plaintiff shall serve a copy of the complaint upon 55 an authorized representative of the attorney general. Failure to soS. 8039 4 1 serve a complaint does not adversely affect any plaintiff's cause of 2 action. 3 (e) A plaintiff who solely alleges a violation of section fourteen 4 hundred twelve of this article must prove that such plaintiff requested 5 a written contract before the contracted work began. 6 3. (a) A plaintiff who prevails on a claim alleging a violation of 7 section fourteen hundred eleven of this article shall be awarded damages 8 as described in this section and an award of reasonable attorneys' fees 9 and costs. 10 (b) (i) A plaintiff who prevails on a claim alleging a violation of 11 section fourteen hundred twelve of this article shall be awarded statu- 12 tory damages of two hundred fifty dollars. 13 (ii) A plaintiff who prevails on a claim alleging a violation of one 14 or more claims under provisions of this article shall be awarded statu- 15 tory damages equal to the value of the underlying contract for the 16 violation in addition to the remedies specified in this article for such 17 other violations. 18 (c) In addition to other damages awarded pursuant to this article, a 19 plaintiff who prevails on a claim alleging a violation of section four- 20 teen hundred eleven of this article is entitled to an award of double 21 damages, injunctive relief, and other such remedies as may be appropri- 22 ate. 23 (d) In addition to any other damages awarded pursuant to this article, 24 a plaintiff who prevails on a claim alleging a violation of section 25 fourteen hundred thirteen of this article is entitled to statutory 26 damages equal to the value of the underlying contract for each violation 27 arising under such section. 28 4. Nothing in this section prohibits: 29 (a) a person alleging a violation of this article from filing a civil 30 action based on the same facts as a civil action commenced by the attor- 31 ney general pursuant to this section; or 32 (b) the attorney general from sending a notice of complaint, unless 33 otherwise barred from doing so. 34 5. In any civil action commenced pursuant to this section, the trier 35 of fact may impose a civil penalty of not more than twenty-five thousand 36 dollars for a finding that a hiring party has engaged in a pattern or 37 practice of violations of this article. Any civil penalty so recovered 38 shall be paid into the general fund. 39 § 1415. Additional rights. 1. Except as otherwise provided by law, any 40 provision of a contract purporting to waive rights under this article is 41 void as against public policy. 42 2. The provisions of this article supplement, and do not diminish or 43 replace, any other basis of liability or requirement established by 44 statute or common law. 45 3. Failure to comply with the provisions of this article does not 46 render any contract between a hiring party and a freelance worker void 47 or voidable or otherwise impair any obligation, claim or right related 48 to such contract or constitute a defense to any action or proceeding to 49 enforce, or for breach of, such contract. 50 4. No provision of this article relating to freelance workers shall be 51 construed as providing a determination about the legal classification of 52 any such worker as an employee or independent contractor. 53 5. The provisions of this article shall not be construed or interpret- 54 ed to override or supplant any of the provisions of chapter ten of title 55 twenty of the administrative code of the city of New York.S. 8039 5 1 § 3. This act shall take effect on the one hundred eightieth day after 2 it shall have become a law; provided, however, that section one of this 3 act shall take effect on the same date and in the same manner as a chap- 4 ter of the laws of 2023 amending the labor law constituting the free- 5 lance isn't free act, as proposed in legislative bills numbers S. 5026 6 and A. 6040, takes effect.
