NEW YORK STATE EXPANDS PROTECTION FOR JOB APPLICANTS, EMPLOYEES AND FREELANCE WORKERS.
New York State has recently created several new laws that expand the right of employees, job applicants and freelance workers. Employers must be aware of these changes to ensure compliance and avoid fines, penalties and lawsuits.
Social Media Protections for Employees and Applicants
Effective March 12, 2024, employers are now prohibited from asking employees or applicants to (1) provide login details or other access information for personal social media accounts, (2) access those accounts in the employer’s presence, or (3) reproduce photographs, video or other information from those accounts.
The Law defines a “personal account” as “an account or profile on an electronic medium where users may create, share, and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, instant messages, or internet website profiles or locations that is used by an employee or an applicant exclusively for personal purposes.”
Retaliation is strictly prohibited by the Law—that is, an employer may not terminate, discipline, penalize or threaten to do same if an employee refuses to disclose any information specified in the Law related to an employee’s personal social media account.
The Law recognizes that an employer still owns access to (1) any nonpersonal accounts issued to employees that provide access to an employer’s internal computer or information system and (2) any electronic communication devices that an employer pays for but permits an employee to use for business purposes.
The Law provides employees with a private right of action for a violation of the law. Given the newness of the law, it is yet to be seen how courts will interpret this new statute
Freelance Isn’t Free Act
Effective August 28, 2024, New York State’s Freelance Isn’t Free Act (“The Act”) will become effective. The Act provides certain independent contractors with contractual protections, similar to those already afforded to freelancers under New York City law. “Freelance worker” is defined, in part, as “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…”
The Act requires employers to enter into binding contracts with freelancers that define certain terms and conditions of services.
The Act details some of the required term to be included in such a contract, which includes: (1) the parties’ names and mailing addresses, (2) itemization and value of services to be rendered, (3) the rate, method and date of payment of compensation (or how the date of compensation will be determined); and (4) the date by which the freelance worker must provide a list of services rendered to be compensated. Such contract must be retained by the hiring party for at least six years. Failure to do so could result in significant monetary implications.
In addition, the Act also entitles freelance workers to timely payment of compensation in full. Specifically, freelance workers must be paid on or before the date when payment is due under the terms of the written contract, but no later than 30 days after the completion of the freelancer’s services.
Action against a hiring party for failure to comply with the Act may be initiated in several ways. Freelancers who believe that a hiring party may have violated the Act may file a complaint with the New York State Department of Labor (“DOL”). The DOL has jurisdiction to investigate such complaint and, if appropriate, assess civil and criminal penalties against the hiring party
Freelancers also have a private right of action under the Act for a hiring party’s failure to provide a written contract, non-payment and/or retaliation, which, if a freelance worker prevails, may entitle such worker to damages. Where a hiring party is believed to be engaged in a pattern or practice of violation of the Act, the NYS Attorney General may commence an action on behalf of the State.
Notably, the Act contains a two- year statute of limitations on claims related to a hiring party’s failure to provide or comply with the Act’s requirements related to a written contract. The Act also contains a separate six-year statute of limitations on claims related to a hiring party’s failure to provide compensation and on retaliation, discrimination and/or harassment claims.