Written by Kyle Carraro, Esq.
Effective May 20, 2024, the Freelance Isn’t Free Act (“FIFA”) will provide sweeping protections for freelance workers across all of New York state. The most recent FIFA legislation mirrors the nearly identical New York City law that has been in effect since 2017.
Much like under the FIFA’s NYC counterpart, a freelance worker is defined 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 to provide services in exchange for an amount equal to or greater than $800, either by itself or when aggregated with all contracts for services between the same hiring party and freelance worker during the immediately preceding 120 days.” However, excluding from this broad definition are doctors, lawyers, certain sales representatives, and certain construction contractors.
A hiring party means any person that hires a freelance worker, however government entities are excluded.
Key provisions of the state FIFA include requiring a written agreement between a hiring party and freelance worker where either (a) the value of the contract exceeds $800; or (b) the freelance worker provides services on multiple projects within a 120-day period which exceed$800 in aggregate, providing enhanced penalties for payment violations, and providing additional remedies for retaliation.
The written agreement must be retained by the hiring party for 6 years and must include at least:
The State Department of Labor has committed to providing model contracts that will comply with the FIFA’s requirements.
Payment Violations: A hiring party who fails to properly pay a freelance worker may be liable for damages equal to double the amount owed, plus the freelance worker’s attorneys’ fees and costs.
Retaliation. Under the FIFA, it is prohibited for any hiring party to ““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 [the FIFA], or from obtaining any future work opportunity because the freelance worker has done so.” Violations of this provision entitle a freelance worker to damages “equal to the value of the underlying contract” for each violation.
Failure to Provide Written Agreement. A Hiring Party who fails to provide a written agreement is subject to pay $250, attorneys’ fees, and costs, however, if the Hiring Party is guilty of an additional violation under the FIFA, such as a payment violation or retaliation, failure to provide a written contract entitles the freelance worker to an additional amount equal to the value of the underlying contract.
The state FIFA provides broader enforcement authority than the city law, empowering the government to sue on behalf of freelance workers and take other punitive measures.
Freelance workers also have the right to bring a suit on their own.
While there are other, additional details to this new statute, the key takeaways are that hiring parties and freelance workers i) must work pursuant to a written agreement; ii) must ensure that payment is timely made; and iii) must not take any action that could be seen as retaliation.
The attorneys at Outside Legal Counsel LLP can help ensure that employers are in compliance with this new law. Please reach out to us for more information about our services and how we can help.
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