One of the hot topics of employment law in the past few years has been the concept of independent contractors and the liability associated with improperly designating an employee as an independent contractor. However, I have not seen much written with respect to how independent contractors are handled under one of the more employee friendly statutes in the country—the New York City Human Rights Law (NYCHRL) (pdf). That is, how does this liberal statute deal with independent contractors and claims of employment discrimination?
Title VII and the New York State Human Rights Law (NYSHRL) (pdf) look to the common law of agency to determine whether an individual is an employee or an independent contractor. If the individual is an independent contractor then generally the employer is not liable for claims brought by that individual under Title VII and the NYSHRL.
However, under the NYCHRL, independent contractors may be counted as employees and can file employment discrimination claims against the contracting company, if they are “[n]atural persons employed as independent contractors to carry out work in furtherance of an employer’s business enterprise who are not themselves employers. . .” NYCHRL § 8-102 (5).
Thus, New York City employers that hire an individual who may be deemed an independent contractor under the common law of agency, may still be liable for that contractor’s claims of employment discrimination under the NYCHRL. Therefore, before you hire an “independent contractor” in New York City, consult your attorney and consider hiring contractors who are acting through a corporation.
Have a great weekend.