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A08535 Actions:

01/05/2024referred to labor
01/23/2024reported referred to codes
02/15/2024advanced to third reading cal.316
02/26/2024substituted by s8039
 01/29/2024PASSED SENATE
 01/29/2024referred to codes
 02/26/2024substituted for a8535
 02/26/2024ordered to third reading cal.316
 02/26/2024passed assembly
 02/26/2024returned to senate
 03/01/2024SIGNED CHAP.98
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A08535 Text:

                STATE OF NEW YORK
                   IN ASSEMBLY
                                     January 5, 2024
        Introduced  by M. of A. BRONSON -- read once and referred to the Commit-
          tee on Labor
        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     4  is REPEALED.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.

        A. 8535                             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;

        A. 8535                             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 so

        A. 8535                             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.

        A. 8535                             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.
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