New FOIL Notification Requirements for Public Employers

September 16, 2024

By Emily A. Fallon and Alyson Mathews

On Sept. 4, 2024, Gov. Kathy Hochul signed legislation requiring public employers to notify employees if their disciplinary records are requested as part of a Freedom of Information Law (FOIL) request. This legislation applies to all entities covered by FOIL and went into effect as of Sept. 4, 2024.

This legislation amends Section 87 of the Public Officers Law by adding language which states: 

All agencies subject to the requirements of [the Public Officers Law] shall develop a policy regarding providing a notification to public employees in the event that the agency is responding to a request for such employee’s disciplinary records. 

Employers previously had no obligation to notify a public employee that their disciplinary records were the subject of a FOIL request. This legislation aims to promote recruitment and retention of individuals by providing them with knowledge that an individual or outside entity requested to review their disciplinary records.

Some aspects of the policy required by this legislation may be subject to bargaining if you have employees represented by a union. If you require assistance with drafting or negotiating a policy, please contact Emily FallonAlyson Mathews, any member of Bond’s labor and employment practice or the attorney at the firm with whom you are regularly in contact.

New York Enacts Statewide “Freelance Isn’t Free” Legislation

August 28, 2024

By Rebecca K. Kimura and Hannah K. Redmond

On Nov. 22, 2023, Gov. Kathy Hochul signed into law the “Freelance Isn’t Free Act” (the Act or FIFA), which was amended on March 1, 2024. The Act is codified in Article 44-A of the New York General Business Law. Article 44-A of the General Business Law creates several protections for freelance workers retained as independent contractors. The Act is intended to ensure that freelance workers receive timely compensation for all services performed. The law goes into effect on Aug. 28, 2024.

The Act Applies to “Freelance Workers” and “Hiring Parties”

Subject to specified exceptions, the Act defines freelance workers 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 eight hundred dollars, either by itself or when aggregated with all contracts for services between the same hiring party and freelance worker during the immediately preceding one hundred twenty days.” In short, a freelance worker is any individual hired to provide services of $800 or more as part of a one-time transaction or over the course of several transactions with the same hiring party in the preceding 120 days.

Individuals engaged in the practice of law, licensed medical professionals, construction contractors, and sales representatives as defined by Section 191-a of the Labor Law, are excluded from the definition of freelance worker.

The Act broadly defines “hiring party” as “any person who retains a freelance worker to provide any service,” except local, state, and federal governments. Given the breadth of this definition most individuals and organizations that hire independent contractors to provide services will need to comply with the Act’s requirements.

The Act’s Primary Requirements

The Act imposes several requirements for hiring parties engaging freelance workers. As discussed in greater detail below, the main requirements pertain to written contracts, timely payment and anti-retaliation. The Act also creates an administrative complaint procedure for freelance workers whose rights have been violated as well as a private right of action.

Written Contract

Most significantly, the Act requires a hiring party that retains the services of a freelance worker to reduce the contract to writing. Written agreements must include:

  • the name and mailing address of both parties;
  • an itemization of all services to be provided by the freelance worker, the value of services to be provided, and the rate and method of compensation;
  • the date on which payment by the hiring party is due or the mechanism by which the due date for payment will be determined; and
  • the date by which the freelance worker must provide a list of services rendered under the contract in order to ensure timely payment.

The Act explicitly states that freelance workers and hiring parties may not waive the rights provided under the Act, and any contract provision attempting to do so shall be void and unenforceable.

A copy of the written contract must be furnished to the freelance worker (either physically or electronically) and must be retained by both parties. The hiring party must retain a copy of the contract for a minimum of six years. Though not explicitly stated, the Act suggests that the burden of preparing the written contract falls on the hiring party.

Upon request, hiring parties must also make their contracts with freelance workers available to the attorney general. The failure to produce a contract upon request carries significant consequences, including a presumption that the terms presented by the freelance worker are the agreed upon terms.

Model contracts will be made available on the Department of Labor’s website.

Timely Payment

The Act requires that freelance workers be paid for their services in a timely manner. For purposes of the Act, this means that freelance workers must be paid on or before the date compensation is due under the terms of the contract; or if the contract does not state when payment is due, payment must be made within 30 days of completion of the freelance workers’ services.

Once a freelance worker has begun performing services under the contract, the hiring party may not require that the freelance worker accept less pay than agreed upon, as a condition of timely payment.

Discrimination and Retaliation Prohibited

The Act prohibits discrimination and retaliation against freelance workers who exercise or attempt to exercise their rights under the Act.

Avenues for Redress

The New York State Attorney General is authorized to investigate alleged violations of the Act and to provide appropriate remedies. The Attorney General may bring an action on behalf of the State to enjoin a hiring party from engaging in acts that violate FIFA and to obtain restitution for affected freelance workers.

The Act separately creates a private right of action for aggrieved freelance workers. Such claims may be brought in a court of competent jurisdiction for up to two or six years, depending on the nature of the alleged violation. Claims alleging violations of the written contract requirement may be brought for up to two years. Claims alleging violations of the timely payment requirement or the anti-discrimination and anti-retaliation provisions may be brought for up to six years.

Penalties

In the event that the Attorney General pursues such a civil action, civil penalties may be assessed against the hiring party in the amount of $1,000 for a first violation, $2,000 for a second violation and $3,000 for a third or subsequent violation. Where there is evidence of a pattern or practice of violations under the Act, civil penalties may be imposed of not more than $25,000.

The damages and penalties available to a plaintiff for violations of the Act depend on the nature of the violation. For example:

  • a hiring party’s failure to provide timely payment per the terms of a contract may result in double damages, injunctive relief, attorneys’ fees and costs and other remedies as appropriate;
  • a civil penalty of $250 may be imposed as a result of a hiring party’s failure to provide a freelance worker with a written contract; and
  • a freelance worker who prevails on a retaliation claim under the Act, may be entitled to statutory damages equal to the value of the underlying contract for each violation, in addition to other damages.

New York City’s Act

For those residing and doing business in New York City, the FIFA requirements noted above may not be entirely unfamiliar. The passage of FIFA follows New York City’s enactment of similar legislation in 2017. In fact, FIFA is largely modeled after the New York City Freelance Isn’t Free Act (the City Act), which also requires written contracts and timely payment.

The terms “freelance worker” and “hiring party” are defined similarly under FIFA and the City Act, except that the construction contractor exception is not recognized under the City Act’s definition of freelance worker.

Similar to FIFA, the City Act requires a written contract whenever a hiring party retains the services of a freelance worker and the contract has a value of $800 or more either by itself or when aggregated with all contracts for services between the same parties in the preceding 120 days. The terms that must be included in such a written contract are similar to the requirements under FIFA, except that the City Act does not require freelance workers to provide a list of services rendered under the contract in order to ensure timely payment.

Both FIFA and the City Act also contain identical provisions regarding: (i) the timeliness of payments to be made to freelance workers; and (ii) the prohibition of discrimination or retaliation against freelance workers who exercise their rights under applicable law. Like FIFA, the City Act creates a private right of action and uses the same two and six year limitation periods described above.

The key differences between FIFA and the City Act include FIFA’s record retention requirement and its requirement that the hiring party furnish a copy of the written contract to the freelance worker. The City Act is silent on these matters. The City Act also establishes its own administrative complaint process, through which freelance workers may file complaints with the City’s Office of Labor Policy & Standards.

Though FIFA and the City Act are largely coextensive, FIFA specifically states that it shall not be construed or interpreted to override or supplant any of the provisions of the City Act.

Conclusion

Individuals and organizations that engage the services of freelance workers should prepare to comply with the Freelance Isn’t Free Act requirements by reviewing internal processes for engaging the services of freelance workers and independent contractors before the effective date of Aug. 28, 2024. Among other things, this includes preparing written contracts that comply with the requirements set forth above when contracting with covered freelance workers.

If you have any questions about the Freelance Isn’t Free Act, or any of the information contained in this memo, please contact Rebecca KimuraHannah Redmond or the Bond attorney with whom you are in regular contact.

A Ban No More: District Court Strikes Down FTC’s Noncompete Ban

August 21, 2024

By Bradley A. Hoppe and Kevin G. Cope

The FTC’s noncompete ban (16 C.F.R. § 910-1.6) is no more, at least for the time being. On Aug. 20, 2024, the United States District Court for the Northern District of Texas (Hon. Ada Brown, U.S.D.J.), in Ryan, LLC v. Federal Trade Commission, 24-cv-986, struck down the FTC’s noncompete ban, which was set to take effect on Sept. 4, 2024. The District Court’s Memorandum and Opinion precludes the FTC’s noncompete ban from going into effect nationwide.

In its Memorandum and Opinion, the District Court determined that the FTC lacked the statutory authority to promulgate substantive rules relating to the prevention of unfair methods of competition and that the FTC’s noncompete ban was arbitrary and capricious. Specifically, the District Court concluded that the text and structure of the FTC Act compel the determination that the FTC lacks substantive rulemaking authority with respect to unfair methods of competition. As a result, the FTC exceeded its statutory authority in promulgating the noncompete ban.

The District Court further found that the FTC failed to present sufficient evidence supporting the noncompete ban. Specifically, because no state has enacted a ban as wide-sweeping as the FTC’s noncompete ban, the studies referenced by the FTC which analyzed state noncompete bans did not support the FTC’s universal noncompete ban. Moreover, the FTC’s evidence in support of the noncompete ban was based on factual situations specific to each state and did not, in turn, support a universal, nationwide ban. Finally, the District Court determined the FTC failed to sufficiently address alternatives to issuing the noncompete ban, such as, for example, restrictions on the use of non-competes for low wage workers. Thus, the District Court held that the FTC’s noncompete ban was arbitrary and capricious.

The FTC will likely appeal the District Court’s decision to the United States Court of Appeals for the Fifth Circuit – the appellate court encompassing Texas. Based on its history, it is likely the Fifth Circuit will affirm the District Court’s decision striking down the FTC’s noncompete ban. However, the FTC still has a sliver of hope for its noncompete ban in a case pending before the United States District Court for the Eastern District of Pennsylvania, which recently denied the plaintiff’s request for a preliminary injunction, finding the FTC did have the authority to make substantive rules relating to the prevention of unfair methods of competition and demonstrated a sufficient evidentiary basis for the rule, analyzed here. Given this, the FTC’s noncompete ban may very well end up before the United States Supreme Court. The question remains, however, when will it get there and how the Supreme Court will rule on this issue.

As it stands, the FTC’s noncompete rule is no more and will not go into effect on Sept. 4, 2024. This means that the enforceability of non-competes will continue to be analyzed under applicable state law, which, in New York, requires a non-compete to be reasonable in geographic and temporal scope and no broader than necessary to achieve a legitimate business interest. We will continue to closely monitor the situation and provide updates as they become available.

For any questions about this issue, please contact Bradley A. Hoppe, Kevin G. Cope or any attorney in Bond’s litigation or labor and employment practices or the attorney at the firm with whom you are regularly in contact.

The NLRB Issues New Regulations - A New Assault On Employee Free Choice

August 15, 2024

By Alice B. Stock and Aarti Chandan

On July 26, 2024, the National Labor Relations Board (NLRB) issued a new final rule concerning blocking charges, the voluntary recognition bar and union recognition in the construction industry that, in Orwellian fashion, it has misnamed, the “Fair Choice -- Employee Voice” rule. This new rule rescinds the 2020 rule known as the “Election Protection Rule,” and is yet another initiative of this Board to enable unions to become or remain exclusive bargaining representatives of employees without affording employees the opportunity to exercise their choice by voting in a Board-run secret ballot election. The new rule takes effect on September 30, 2024.

Read More >> The NLRB Issues New Regulations - A New Assault On Employee Free Choice

New York State Requires Paid Lactation Breaks

June 28, 2024

By Laura H. Harshbarger and Lance D. Willoughby-Hudson

Effective June 19, 2024, New York State Labor Law Section 206-c requires all private and public employers to provide 30 minutes of paid break time for employees to express breast milk when the employee has a reasonable need to express breast milk. Prior to enactment of this law, New York State employers were only required to provide reasonable unpaid break time for breast milk expression.

The New York State Department of Labor (NYSDOL) has issued guidance FAQs on the amended law. NYSDOL’s guidance provides that paid break time must be permitted as often as an employee reasonably needs to express breast milk. NYSDOL has issued a template Policy on the Rights of Employees to Express Breast Milk in the Workplace which provides:

HOW OFTEN DURING THE WORKDAY CAN I TAKE BREAKS TO PUMP BREAST MILK? The number of paid breaks an employee will need is unique to each employee. Your employer must accommodate you whenever you reasonably need to take a break to express milk.

Employees must also be permitted to use existing paid break or meal time if they need additional time for breast milk expression beyond the paid 30 minutes, and employers may not require employees to make up this missed work time. Employees are entitled to paid breaks for breastmilk expression for up to three years following childbirth.

Employers are required to provide written notice of breast milk expression rights to all employees at the time of hire and then annually thereafter. Additionally, notice must be provided when an employee returns from childbirth leave.

Employees must provide reasonable advance notice of their need for lactation breaks. As a reminder, employers must continue to provide a room or other location to express breast milk once an employee submits a written request to their direct supervisor or an individual designated by the employer to process lactation room requests. Employers must respond to lactation room requests in writing within five days.

Lactation rooms must have the following:

  • Be close to an employee’s work area
  • Provide good natural or artificial light
  • Be private – both shielded from view and free from intrusion 
  • Have accessible, clean running water nearby
  • Have an electrical outlet (if the workplace is supplied with electricity)
  • Include a chair
  • Provide a desk, small table, counter or other flat surface
  • Ability to store pumped breast milk in a refrigerator if one is available

Employers are prohibited from discriminating in any way against an employee who chooses to express breast milk in the workplace.  

If you have any questions about the information presented in this news alert, please contact Laura Harshbarger, Lance Willoughby-Hudson, any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.

U.S. Department of Labor Announces its Final Rule to Increase the Salary Level to Qualify for the White Collar Exemptions

April 25, 2024

By Subhash Viswanathan

On April 23, 2024, the U.S. Department of Labor announced its final rule to increase the minimum weekly salary to qualify for the Fair Labor Standards Act white collar exemptions.  The final rule is scheduled to be published in the Federal Register on April 26, 2024, and will become effective on July 1, 2024.

Read More >> U.S. Department of Labor Announces its Final Rule to Increase the Salary Level to Qualify for the White Collar Exemptions

Non-Compete Clauses May Be A Thing Of The Past: Analyzing the FTC’s Final Rule Banning Non-Compete Clauses

April 24, 2024

By Bradley A. Hoppe and Kevin G. Cope

In a 3-2 vote on April 23, 2024, the Federal Trade Commission (“FTC”) issued its final rule on non-compete clauses, declaring all non-compete clauses to be unfair methods of competition, resulting in a national ban on non-compete clauses.

Read More >> Non-Compete Clauses May Be A Thing Of The Past: Analyzing the FTC’s Final Rule Banning Non-Compete Clauses

New York State Budget Bill’s Impact on the Workplace: New York Enacts Paid Prenatal Leave and Paid Breast Milk Expression Time, While Keeping Paid COVID-19 Sick Leave on the Books through Mid-2025

April 22, 2024

By Kristen E. Smith

After much anticipation, New York State lawmakers came to a final agreement on a budget bill, which contains several key changes employers should take note of. Three employment law provisions of Gov. Hochul’s executive budget proposal, which we reported on in January, survived in altered form. Others did not make it into the final approved budget bill.

Read More >> New York State Budget Bill’s Impact on the Workplace: New York Enacts Paid Prenatal Leave and Paid Breast Milk Expression Time, While Keeping Paid COVID-19 Sick Leave on the Books through Mid-2025