With little fanfare, the New York City Council approved a sweeping change to its employment laws in September when it updated its anti-discrimination rules to include independent contractors.
It’s a dynamic update to a decades-old city law that has focused on relationships between employers and traditional employees. When the amendment went into effect on January 1, 2020, a group of workers that hadn’t even been referenced in the law became fully covered by it.
For companies that engage independent contractors in New York City, the expansion brought broad implications for a variety of day-to-day practices. The amendment impacts activities from how companies conduct background screenings of prospective workers before they even get an assignment, to how employers manage these workers once they do.
It’s another example of how, as the gig economy grows, so will laws protecting workers who aren’t clocking in at traditional 9-to-5 jobs.
New law impacts compliance with NYC’s Article 23-A
At the moment, however, employers in New York City need to be mindful of the city’s updated Human Rights Law, and that it will shortly apply to not just employees, but also independent contractors.
In particular, employers should be aware that among the law’s many subdivisions are sections that relate specifically to how employers can use a job candidate’s past criminal history, and bars companies from not hiring somebody just because of prior convictions. The law is designed to ensure that past offenders have a fair chance at landing work.
Now, thanks to the anti-discrimination law’s expansion, those same sections will apply to independent contractors. What’s more, when they conduct a criminal background check on prospective workers and turn up a criminal conviction, companies in New York City will need to comply with New York Correction Law Article 23-A.
The Article takes employers through an eight-step analysis to assess the risk that an individual with a criminal record brings to the employer. Considerations include:
- The duties of the job
- The bearing of the person’s conviction history on his or her ability to do the job
- The time elapsed since the conviction
- The candidate’s age at the time of the offense
- The seriousness of the crime
- Any evidence of rehabilitation provided by the candidate
- The employer’s legitimate interest to protect property or the public as well as
- The state’s policy to encourage the employment of persons with criminal rerecords
New York City employers also must remember that they can be held liable if a third-party vendor like an outsourced human resources provider or a staffing firm fails to conduct a 23-A analysis when screening a prospective independent contractor on their behalf.