City of Schenectady, NY Freelance Workers

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.

HIRING PARTY

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.

OFFICE

The office the Director of Freelance Worker Affairs.

§ 158A-2 Written contract required.

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.

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.

The Director may, by rule, require additional terms to ensure that the freelance worker and the hiring party understand their obligations under the contract.

§ 158A-3 Payment practices.

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.

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.

§ 158A-4 Retaliation.

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.

§ 158A-5 Complaint procedure; jurisdiction of Director.

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.

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:

(a)

The freelance worker; and

(b)

The hiring party, if the Director discovered the lack of jurisdiction after sending a notice to the hiring party pursuant to Subsection C of this section.

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.

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:

(a)

A written statement that the freelance worker has been paid in full and proof of such payment; or

(b)

A written statement that the freelance worker has not been paid in full and the reasons for the failure to provide such payment.

(2)

Within 20 days of receiving the written response, the Director shall send the freelance worker a copy of:

(a)

The response;

(b)

Any enclosures submitted to the Director with the response;

(c)

Materials informing the freelance worker that he or she may bring an action in a court of competent jurisdiction;

(d)

Any other information about the status of the complaint.

(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.

§ 158A-6 Civil actions.

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.

(3)

Within 10 days after having commenced a civil action pursuant to Subsection A of this section, a plaintiff shall serve a copy of the complaint upon an authorized representative of the Director. Failure to so serve a complaint does not adversely affect any plaintiff's cause of action.

(4)

A plaintiff who solely alleges a violation of § 158A-2 must prove that such plaintiff requested a written contract before the contracted work began.

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.

(3)

Violation of § 158A-3. In addition to any other damages awarded pursuant to this chapter, a plaintiff who prevails on a claim alleging a violation of § 158A-3 is entitled to an award for double damages, injunctive relief and other such remedies as may be appropriate.

(4)

Violation of § 158A-4. In addition to any other damages awarded pursuant to this chapter, a plaintiff who prevails on a claim alleging a violation of § 158A-4 is entitled to statutory damages equal to the value of the underlying contract for each violation arising under such section.

§ 158A-7 Civil actions for pattern or practice of violations.

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.

(3)

Nothing in this section prohibits:

(a)

A person alleging a violation of this chapter from filing a civil action pursuant to § 158A-6 based on the same facts as a civil action commenced by the Corporation Counsel pursuant to this section.

(b)

The Director from sending a notice of complaint pursuant to § 158A-5, unless otherwise barred from doing so.

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.

§ 158A-8 Compliance; construal of provisions.

Except as otherwise provided by law, any provision of a contract purporting to waive rights under this chapter is void as against public policy.

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.

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.

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.

§ 158A-9 Follow-up; data collection.

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.

The Director shall collect and track information about complaints alleging violations of this chapter. The information collected shall include, at minimum:

(1)

The identity of the hiring party alleged to have violated this chapter;

(2)

The freelance worker's occupation;

(3)

The section of this chapter that was alleged to have been violated;

(4)

The value of the contract;

(5)

The response or nonresponse from the hiring party; and

(6)

Information from a completed survey identified in Subsection A of this section.