[HISTORY Adopted by the Council of the City
of Schenectady 3-13-2017 by L.L.
No. 1-2017. Amendments noted where applicable.]
For purposes of this chapter, the following terms have the following
meanings:
The Director of Freelance Worker Affairs, as appointed by
the Mayor.
Any natural person or any 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 compensation.
This term does not include:
Any person who, pursuant to the contract at issue, is a sales
representative as defined in § 191-a of the Labor Law;
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 any court suspending,
enjoining, restraining, disbarring or otherwise restricting such person
in the practice of law;
Any person who is a licensed medical professional; and
Any person employed in the adult services industry.
Any person who retains a freelance worker to provide any
service, other than:
The United States government;
The State of New York, including any office, department, agency,
authority or other body of the state, including the Legislature and
the Judiciary;
The City, including any office, department, agency or other
body of the City;
Any other local government, municipality or county; or
Any foreign government.
The office the Director of Freelance Worker Affairs.
A.
Whenever a hiring party retains the services of a freelance worker,
and the contract is agreed to within the City of Schenectady or a
substantial portion of the work under the contract takes place within
the City of Schenectady, and the contract between the parties has
a value of $1,200 or more, 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, the contract shall
be reduced to writing. Each party to the written contract shall retain
a copy thereof.
B.
The written contract shall include, at a minimum, the following information:
(1)
The name and mailing address of both the hiring party and the freelance
worker;
(2)
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; and
(3)
The date on which the hiring party must pay the contracted compensation
or the mechanism by which such date will be determined.
C.
The Director may, by rule, require additional terms to ensure that
the freelance worker and the hiring party understand their obligations
under the contract.
A.
Except as otherwise provided by law, the contracted compensation
shall be paid to the freelance worker either:
(1)
On or before the date such compensation is due under the terms of
the contract; or
(2)
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 30 days after the completion of the freelance
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.
No hiring party 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 freelancer worker from, exercising
or attempting to exercise any right guaranteed under this chapter,
or from obtaining future work opportunity because the freelance worker
has done so.
A.
Complaint. A freelance worker who is aggrieved by a violation of
this chapter may file a complaint with the Director within two years
after the acts alleged to have violated this chapter occurred. The
Director shall prescribe the form of the complaint, which shall include,
at a minimum:
(1)
The name and mailing address of the freelance worker and of the hiring
party alleged to have violated this chapter;
(2)
A statement detailing the terms of the freelance contract, including
a copy of such contract, if available;
(3)
The freelance worker's occupation;
(4)
A statement detailing the alleged violations of this chapter; and
(5)
A signed affirmation that all facts alleged in the complaint are
true.
B.
Jurisdiction.
(1)
The Director does not have jurisdiction over a complaint if:
(a)
Either party to the contract has initiated a civil action in a court of competent jurisdiction alleging a violation of this chapter or a breach of contract arising out of the contract that is the subject of the complaint filed under Subsection A of this section, unless such civil action has been dismissed without prejudice to future claims; or
(b)
Either party to the contract has filed a claim or complaint before any administrative agency under any local, state or federal law alleging a breach of contract that is the subject of the complaint filed under Subsection A of this section, unless the administrative claim or complaint has been withdrawn or dismissed without prejudice to future claims.
(2)
Where the Director lacks jurisdiction over a complaint, the Director
shall notify the following, in writing, within 10 days of discovering
the lack of jurisdiction:
C.
Notice to hiring party. Within 20 days of receiving a complaint alleging
a violation of this chapter, the Director 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 chapter, detail the remedies available to a freelance
worker for violations of this chapter 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 chapter that the hiring party committed the violations
alleged in the complaint. The Director shall send such notice by certified
mail and shall bear the cost of sending such notice.
D.
Response.
(1)
Within 20 days of receiving the notice of complaint, the hiring party
identified in the complaint shall send the Director one of the following:
(2)
Within 20 days of receiving the written response, the Director shall
send the freelance worker a copy of:
(3)
If the Director receives no response to the notice of complaint within the time provided by Subsection D(1), the Director shall mail a notice of nonresponse to both the freelance worker and the hiring party by regular mail and shall include with such notice proof that the Director previously mailed the notice of complaint to the hiring party by certified mail. Upon satisfying the requirements of this subsection, the Director may close the case.
A.
Cause of action.
(1)
Except as otherwise provided by law, a freelance worker alleging a violation of this chapter may bring an action in any court of competent jurisdiction for damages as described in Subsection B of this section.
(2)
Any action alleging a violation of this chapter shall be brought
within two years after the acts alleged to have violated this chapter
occurred.
B.
Damages.
(1)
A plaintiff who prevails on a claim alleging a violation of this
chapter shall be awarded damages as described in this subsection and
an award of reasonable attorneys' fees and costs.
(2)
Violation of § 158A-2.
(a)
A plaintiff who prevails on a claim alleging a violation of § 158A-2 shall be awarded statutory damages of $250.
(b)
A plaintiff who prevails on a claim alleging a violation of § 158A-2 and on one or more claims under other provisions of this chapter shall be awarded statutory damages equal to the value of the underlying contract for the violation of § 158A-2 in addition to the remedies specified in this chapter for the other violations.
A.
Cause of action.
(1)
Where reasonable cause exists to believe that a hiring party is engaged
in a pattern or practice of violations of this chapter, the Corporation
Counsel may commence a civil action on behalf of the City in a court
of competent jurisdiction.
(2)
An action pursuant to Subsection A(1) 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.
B.
Civil penalty. In any civil action commenced pursuant to Subsection A of this section, the trier of fact may impose a civil penalty of not more than $25,000 for a finding that a hiring party has engaged in a pattern or practice of violations of this chapter. Any civil penalty so recovered shall be paid into the general fund of the City.
A.
Except as otherwise provided by law, any provision of a contract
purporting to waive rights under this chapter is void as against public
policy.
B.
The provisions of this chapter 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 chapter 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 chapter shall be construed as providing a determination
about the legal classification of any individual as an employee or
independent contractor.
A.
No later than six months after the Director sends to a freelance worker either a hiring party's response and accompanying materials or a notice of nonresponse pursuant to § 158A-5D(2) or (3), the Director 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 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 Director shall collect and track information about complaints
alleging violations of this chapter. The information collected shall
include, at minimum: