New York Freelance Worker Protections

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On August 28, 2024, the Freelance Isn’t Free Act (or “FIFA”) goes into effect in New York.  Passed into law earlier this year, and initially scheduled to take effect on May 20, 2024, the law creates protections for freelance workers in New York State.

FIFA’s protections can be divided into four general categories: (1) written contract requirements; (2) timely payment of compensation; (3) recording keeping; and (4) anti-discrimination.  FIFA defines “freelance worker” broadly, applying the term to any individual or entity hired as an independent contractor to provide services in exchange for $800 or more.  The $800 can be earned from a single project or the aggregate of multiple projects within a 120 day period.

While the definition of “freelance worker” is broad, four types of workers – sales representatives, legal professionals, medical professionals and construction contractors – are specifically excluded from the definition.

Under FIFA, the individual or entity hiring the freelance worker – referred to as the “hiring party” – is required to enter into a written contract with the freelance worker.  There are no exceptions to the definition of a “hiring party” except the federal government, state government, and municipalities.

At a minimum, the contract must (i) include the parties’ names and mailing addresses; (ii) itemize the freelance worker’s services; (iii) identify the value of the services, the rate and method of compensation, and the date on which the freelance worker must submit a list of services rendered to the hiring party so that it can make timely payment; and (iv) identify the timeframe in which the freelance worker must receive payment.

FIFA specifically requires payment to a freelance worker to be made on or before the date it is due or, if the date is unspecified, no later than 30 days after completion of the freelance worker’s services.

The Commissioner of the New York State Department of Labor is empowered to enforce the provisions of FIFA, including not only the contract and payment provisions described above, but also the recording keeping and anti-discrimination provisions.

Regarding FIFA’s recording keeping requirements, hiring parties must keep a record of all freelance worker contracts for a minimum of six years.  If a hiring party fails to keep a record of a contract, the Commissioner will presume that the contract contained the terms as described by the freelance worker.

Hiring parties are also prohibited from discriminating against or retaliating against a freelance worker in an effort to deter the worker from seeking FIFA protections.

FIFA empowers freelance workers to bring complaints before the Commissioner for any FIFA violation.  Additionally, freelance workers may also file lawsuits alleging FIFA violations.  Depending upon the basis for the complaint or lawsuit, a freelance worker prevailing in such action may receive damages equal to the value of the underlying contract, double damages, attorneys fees and even injunctive relief.  FIFA also empowers the Commissioner to issue monetary fines to a hiring party demonstrating a pattern of FIFA violations.

For the text of the Freelance Isn’t Free Act, go to https://www.nysenate.gov/legislation/bills/2023/S5026.

Broader Accommodations Required for Employee Pregnancy

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Employers should be aware of new legal requirements on the horizon related to employee pregnancy.

In late 2022, the Pregnant Workers Fairness Act (“PWFA”) became law with the purpose of providing reasonable workplace accommodations to employees impacted by pregnancy, childbirth, or related medical conditions.

On April 15, 2024, the Equal Employment Opportunity Commission issued its final regulations for the law and the final regulations took effect on June 18, 2024.  These final regulations establish a broad interpretation of the protections created for qualifying employees under the law.

Under the PWFA, “pregnancy, childbirth, and related medical conditions” include a current pregnancy, past pregnancy, potential or intended pregnancy, labor and childbirth.  “Potential or intended pregnancy” can include infertility, fertility treatment, and the use of contraception.  Examples of “related medical conditions” can include termination of pregnancy through miscarriage, stillbirth, or abortion, ectopic pregnancy, gestational diabetes, preeclampsia, high blood pressure, anxiety and depression.  This is far from an all-inclusive list of the potential conditions that would qualify for accommodations under the EEOC’s final rule.

The EEOC intends the PWFA to cover conditions that do not rise to the level of disability.

An employee may qualify for accommodations under the PWFA even if the employee cannot perform the essential functions of their position, as long as the employee’s inability to perform job functions is temporary, the function can be performed in the near future, and the inability to perform the essential function can be reasonably accommodated.

The EEOC provides examples of reasonable accommodations under the PWFA. These can include part-time or modified work schedules, breaks for use of the restroom, drinking, eating and/or resting, modifying equipment uniforms or devices, telework, remote work or change of work site, and even temporarily suspending one or more essential functions.  For lactation specifically, an employer should be prepared to permit the employee to nurse during work hours where the child is in “close proximity” to the employee.

Employers in New York should be aware that Governor Hochul signed additional protections into law related to the PWFA.  Effective today, June 19, 2024, New York employers must provide a 30 minute paid break each time an employee has “a reasonable need to express breast milk.”  Should the employee need more than 30 minutes for the session, the employee may use existing paid break time or meal time.  This New York expansion entitles employees to multiple paid lactation breaks each day.  This augments the Nursing Mothers in the Workplace Act that became law in New York in 2007.  Employers are already required to provide either reasonable unpaid break time or allow employees to use paid rest periods or meal breaks to express milk for up to three years following the birth of a child.

Effective January 1, 2025, New York employers will also be required to provide employees with 20 hours of paid prenatal leave during any 52 week calendar period.

Employers should work with their legal counsel to review the PWFA, the resulting EEOC rules, and New York law changes and start taking steps immediately to prepare for accommodating qualifying employees seeking accommodations.

SCOTUS Update: Major Title VII Changes Following Muldrow v. City of St. Louis that Every Employer Should Know

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On April 17, 2024, the Supreme Court of the United States rendered the most highly anticipated employment opinion of the year. In Muldrow v. City of St. Louis, the Supreme Court lowered the bar for plaintiffs bringing employment discrimination actions against their employers by only requiring an employee to prove that “some harm” occurred as a result of an employment decision.


Prior to this decision, a plaintiff bringing a discrimination claim needed to meet a higher standard of “significant,” “material,” or “substantial” harm.


In Muldrow, a female police officer claimed that her employer, the St. Louis Police Department, discriminated against her based on her sex by transferring her to another department where she had different job responsibilities but the same rate of pay. The City of St. Louis argued that because the transfer was not a “significant” or “material” change, the female officer was unable to establish her claim.

Both the district court and the circuit court agreed with the City of St. Louis and granted summary judgment in favor of the city, effectively ending the female officer’s lawsuit.


The officer, Sergeant Muldrow, petitioned the Supreme Court of the United States and the highest court considered whether a plaintiff can establish a discrimination claim based on an employment transfer without proving the transfer decision caused significant harm. The Supreme Court unanimously held that a plaintiff need only demonstrate “some” harm occurred with regard to a term or condition of employment and specifically rejected that the harm must be “significant.”


This decision will have a sweeping impact on employment discrimination cases across the country.

It clearly lowers the bar for plaintiffs to establish actionable discrimination claims under Title VII which leaves employers vulnerable to a larger range of employment discrimination lawsuits. Historically, federal courts required that an employee’s damage from an “adverse employment action” must be measurable through wages, compensation, terms, conditions or other privileges. This requirement is now gone and employers must consider whether their decisions could simply result in “some” harmful impact upon an employee.


There will soon be new interpretations and analysis through litigation in the courts regarding the Muldrow decision but employers are advised to review their current employment policies and practices that may appear to have any impact an employee’s work conditions. It is advisable to consult with your employment attorney for further clarification and information.

FTC Bans Non-Compete Agreements

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The long-awaited Federal Trade Commission (“FTC”) rule banning non-compete agreements has finally arrived.  On April 23, 2024, the FTC issued its final rule.  As a justification for the outright ban, the FTC cites protecting the fundamental freedom of workers to change jobs, increasing innovation, and fostering new business formation.

The FTC estimates that this ban will result in the formation of an additional 8500 businesses each year.  Additionally, the FTC estimates higher wages for workers and lower health care costs over the next decade.  Finally, the FTC anticipates the filing of an additional 17,000 to 29,000 more patents each year for the next 10 years.

The new rule makes existing non-compete agreements for the vast majority of workers unenforceable.  The only surviving non-compete agreements are those for senior executives, defined as workers earning more than $151,164 annually and who are in policy-making positions.   While existing non-compete agreements for senior executives remain enforceable, future agreements for this section of the workforce are prohibited just like all other workers.

What do employers need to do with respect to existing non-compete agreements for the average worker?  The rule requires them to send notices to workers bound by existing non-compete agreements stating that the agreements will not be enforced against them in the future.  The FTC provided model language in the final rule that employers can use when drafting these notices.

Now that non-compete agreements are unavailable, employers must rely upon trade secret laws and non-disclosure agreements to protect employer’s sensitive and/or proprietary information.  The FTC also suggests that employers protect their information by retaining their workers with wage increases and improved working conditions.

The final rule will take effect 120 days after publication in the Federal Register.

Expanded Overtime Protections for Workers

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Last year, the U.S. Department of Labor published a proposed rule expanding overtime protections to a wider population of employees.

Under existing Department of Labor rules, full-time salaried workers earning less than $35,568 annually, or $684 per week, are guaranteed overtime pay.  The proposed rule would increase the salary threshold to $55,000 annually, or $1,059 per week.

Department of Labor projections indicate that this change will create overtime protections for an additional 3.4 million employees.  The new rule also increases the minimum salary for the highly compensated employee exemption from $107,432 annually to $143,988 annually. 

This rule may be finalized as early as April and take effect as early as June.

Similar changes to overtimes rules and exemptions have already taken effect in the State of New York in recent months.

In December of 2023, the New York State Department of Labor increased the minimum salary thresholds for exempt executive and administrative employees in New York City and its surrounding counties to $62,400 annually, or $1,200 per week.  Throughout the rest of New York State, the salary threshold for this same population of employees increased to $1,124.20 per week, or approximately $58,458.40 per year.

These thresholds will continue to increase incrementally in 2025 and 2026.

Employers impacted by these changes should review their employee salaries and payroll practices to ensure compliance.

Now may be a good opportunity to compile a list of employees impacted by these changes and decide whether to raise their salaries to meet the new thresholds or convert them to non-exempt status.  This is only part one of an employer’s review.  Employers should also consider employees’ job duties and responsibilities to determine whether their current duties and responsibilities qualify for an exemption.

Adjustments to employee compensation and exempt status can impact a company’s budget, so consider including personnel from human resources, legal, and finance in these discussions.  

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