S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8039
 
                             I N  S E N A T E
 
                              January 5, 2024
                                ___________
 
 Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN  ACT  to  amend  the  general business law, in relation to contracted
   compensation payments; and to repeal section 191-d of the labor law
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  Section  191-d of the labor law, as added by a chapter of
 the laws of 2023 amending the labor law constituting the freelance isn't
 free act, as proposed in legislative bills numbers S. 5026 and A.  6040,
 is REPEALED.
   §  2. The general business law is amended by adding a new article 44-A
 to read as follows:
 
                               ARTICLE 44-A
                         FREELANCE ISN'T FREE ACT
 
 SECTION 1410. DEFINITIONS.
         1411. CONTRACTED COMPENSATION PAYMENTS.
         1412. WRITTEN CONTRACTS.
         1413. DISCRIMINATION PROHIBITED.
         1414. VIOLATIONS.
         1415. ADDITIONAL RIGHTS.
   § 1410. DEFINITIONS. AS USED IN  THIS  ARTICLE,  THE  FOLLOWING  TERMS
 SHALL HAVE THE FOLLOWING MEANINGS:
   1.  "CONSTRUCTION CONTRACTOR" MEANS ANY PERSON, SOLE PROPRIETOR, PART-
 NERSHIP, FIRM, CORPORATION, LIMITED LIABILITY  COMPANY,  ASSOCIATION  OR
 OTHER LEGAL ENTITY WHO BY ONESELF OR THROUGH OTHERS OFFERS TO UNDERTAKE,
 OR  HOLDS  ONESELF  OUT  AS BEING ABLE TO UNDERTAKE, OR DOES UNDERTAKE A
 CONSTRUCTION PROJECT.
   2.  "CONSTRUCTION  PROJECT"  MEANS  THE  PROVIDING  OF  ANY  LABOR  OR
 SERVICES,  AND  THE USE OF ANY MATERIALS OR EQUIPMENT IN ORDER TO ALTER,
 BUILD, EXCAVATE, ADD TO, SUBTRACT FROM, IMPROVE, REPAIR, MAINTAIN, RENO-
 VATE, MOVE, WRECK OR DEMOLISH ANY BRIDGE, BUILDING, HIGHWAY, ROAD, RAIL-
 ROAD, LAND, TUNNEL, SEWER, DRAINAGE OR OTHER STRUCTURE, PROJECT,  DEVEL-

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD04464-02-4
 S. 8039                             2
 
 OPMENT,  OR IMPROVEMENT, OR THE DOING OF ANY PART THEREOF, INCLUDING THE
 ERECTION OF SCAFFOLDING OR OTHER STRUCTURES OR WORKS IN CONNECTION THER-
 EWITH.
   3.  "FREELANCE  WORKER"  MEANS  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, BUT DOES NOT INCLUDE:
   (A)  ANY  PERSON  WHO,  PURSUANT  TO THE CONTRACT AT ISSUE, IS A SALES
 REPRESENTATIVE AS DEFINED IN SECTION ONE  HUNDRED  NINETY-ONE-A  OF  THE
 LABOR LAW;
   (B) 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 COURT SUSPENDING, ENJOIN-
 ING, RESTRAINING, DISBARRING OR OTHERWISE RESTRICTING SUCH PERSON IN THE
 PRACTICES OF LAW;
   (C) ANY PERSON WHO IS A LICENSED MEDICAL PROFESSIONAL; OR
   (D) ANY PERSON WHO IS A CONSTRUCTION CONTRACTOR.
   4. "HIRING PARTY" MEANS ANY PERSON WHO RETAINS A FREELANCE  WORKER  TO
 PROVIDE ANY SERVICE, OTHER THAN:
   (A) THE UNITED STATES GOVERNMENT;
   (B)  THE  STATE OF NEW YORK, INCLUDING ANY OFFICE, DEPARTMENT, AGENCY,
 AUTHORITY OR OTHER BODY OF THE STATE INCLUDING THE LEGISLATURE  AND  THE
 JUDICIARY;
   (C)  A MUNICIPALITY, INCLUDING ANY OFFICE, DEPARTMENT, AGENCY OR OTHER
 BODY OF A MUNICIPALITY; OR
   (D) ANY FOREIGN GOVERNMENT.
   § 1411. CONTRACTED  COMPENSATION  PAYMENTS.  1.  EXCEPT  AS  OTHERWISE
 PROVIDED  BY  LAW,  THE CONTRACTED COMPENSATION SHALL BE PAID TO A FREE-
 LANCE WORKER EITHER:
   (A) ON OR BEFORE THE DATE SUCH COMPENSATION IS DUE UNDER THE TERMS  OF
 THE CONTRACT; OR
   (B)  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 THIRTY DAYS AFTER THE COMPLETION OF THE FREE-
 LANCE WORKER'S SERVICES UNDER THE CONTRACT.
   2. 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.
   § 1412. WRITTEN CONTRACTS. 1. WHENEVER  A  HIRING  PARTY  RETAINS  THE
 SERVICES  OF A FREELANCE WORKER, AS SUCH TERMS ARE DEFINED IN THIS ARTI-
 CLE, THE CONTRACT BETWEEN SUCH PARTY AND  WORKER  SHALL  BE  REDUCED  TO
 WRITING.  THE HIRING PARTY MUST FURNISH A COPY OF SUCH WRITTEN CONTRACT,
 EITHER PHYSICALLY OR ELECTRONICALLY, TO THE FREELANCE  WORKER  AND  EACH
 PARTY TO THE WRITTEN CONTRACT SHALL RETAIN A COPY THEREOF.
   2.  THE  WRITTEN  CONTRACT  SHALL INCLUDE, AT A MINIMUM, THE FOLLOWING
 INFORMATION:
   (A) THE NAME AND MAILING ADDRESS OF BOTH  THE  HIRING  PARTY  AND  THE
 FREELANCE WORKER;
 S. 8039                             3
 
   (B)  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;
   (C) THE DATE ON WHICH THE HIRING PARTY MUST PAY THE CONTRACTED COMPEN-
 SATION OR THE MECHANISM BY WHICH SUCH DATE WILL BE DETERMINED; AND
   (D)  THE  DATE  BY  WHICH  A  FREELANCE  WORKER  MUST SUBMIT A LIST OF
 SERVICES RENDERED UNDER SUCH CONTRACT TO THE HIRING PARTY  IN  ORDER  TO
 MEET  ANY  INTERNAL  PROCESSING  DEADLINES  OF SUCH HIRING PARTY FOR THE
 PURPOSES OF COMPENSATION BEING TIMELY RENDERED BY THE  AGREED-UPON  DATE
 AS STIPULATED IN PARAGRAPH (C) OF THIS SUBDIVISION.
   3.  SUCH  HIRING  PARTY  SHALL BE REQUIRED TO KEEP SUCH CONTRACT FOR A
 PERIOD OF NO LESS THAN SIX YEARS AND SHALL MAKE SUCH CONTRACT  AVAILABLE
 TO  THE ATTORNEY GENERAL UPON REQUEST.  THE FAILURE OF A HIRING PARTY TO
 MAINTAIN SUCH CONTRACTS OR PRODUCE SUCH CONTRACTS TO THE ATTORNEY GENER-
 AL SHALL GIVE RISE TO A PRESUMPTION THAT THE TERMS  THAT  THE  FREELANCE
 WORKER HAS PRESENTED ARE THE AGREED UPON TERMS.
   4.  THE  COMMISSIONER OF LABOR SHALL MAKE AVAILABLE MODEL CONTRACTS ON
 THE WEBSITE OF THE DEPARTMENT OF LABOR FOR USE BY THE GENERAL PUBLIC  AT
 NO  COST. SUCH MODEL CONTRACTS SHALL BE MADE AVAILABLE IN ENGLISH AND IN
 THE TWELVE LANGUAGES MOST COMMONLY SPOKEN BY LIMITED ENGLISH  PROFICIENT
 INDIVIDUALS IN THE STATE.
   § 1413. DISCRIMINATION PROHIBITED. NO HIRING PARTY, AS DEFINED IN THIS
 ARTICLE,  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 FREELANCE WORKER FROM,  EXERCISING  OR  ATTEMPTING  TO
 EXERCISE  ANY RIGHT GUARANTEED UNDER THIS ARTICLE, OR FROM OBTAINING ANY
 FUTURE WORK OPPORTUNITY BECAUSE THE FREELANCE WORKER HAS DONE SO.
   § 1414. VIOLATIONS. 1. THE ATTORNEY GENERAL  SHALL  BE  AUTHORIZED  TO
 INVESTIGATE COMPLAINTS REGARDING A VIOLATION OF THIS ARTICLE AND PROVIDE
 APPROPRIATE  REMEDIES.  WHENEVER THE ATTORNEY GENERAL SHALL BELIEVE FROM
 EVIDENCE SATISFACTORY TO THEM THAT ANY HIRING PARTY HAS ENGAGED IN OR IS
 ABOUT TO ENGAGE IN ANY OF THE ACTS OR PRACTICES STATED  TO  BE  UNLAWFUL
 THEY  MAY BRING AN ACTION IN THE NAME AND ON BEHALF OF THE PEOPLE OF THE
 STATE OF NEW YORK TO ENJOIN SUCH  UNLAWFUL  ACTS  OR  PRACTICES  AND  TO
 OBTAIN  RESTITUTION  FOR  ONE OR MORE FREELANCE WORKERS OF ANY MONEYS OR
 PROPERTY OBTAINED DIRECTLY OR INDIRECTLY BY ANY SUCH  UNLAWFUL  ACTS  OR
 PRACTICES.  IN SUCH ACTION PRELIMINARY RELIEF MAY BE GRANTED UNDER ARTI-
 CLE SIXTY-THREE OF THE CIVIL PRACTICE LAW AND RULES. IN  SUCH  ACTION  A
 CIVIL  PENALTY  IN  AN  AMOUNT  NOT TO EXCEED ONE THOUSAND DOLLARS FOR A
 FIRST VIOLATION, TWO THOUSAND DOLLARS FOR A SECOND  VIOLATION  OR  THREE
 THOUSAND  DOLLARS  FOR  A THIRD OR SUBSEQUENT VIOLATION MAY BE SOUGHT BY
 THE ATTORNEY GENERAL.
   2. (A) A FREELANCE WORKER ALLEGING A VIOLATION  OF  THIS  ARTICLE  MAY
 BRING AN ACTION IN ANY COURT OF COMPETENT JURISDICTION FOR DAMAGES.
   (B) ANY ACTION ALLEGING A VIOLATION OF SECTION FOURTEEN HUNDRED TWELVE
 OF THIS ARTICLE SHALL BE BROUGHT WITHIN TWO YEARS AFTER THE ACTS ALLEGED
 TO HAVE VIOLATED THIS ARTICLE OCCURRED.
   (C) ANY ACTION ALLEGING A VIOLATION OF SECTION FOURTEEN HUNDRED ELEVEN
 OF  THIS  ARTICLE  OR  SECTION FOURTEEN HUNDRED THIRTEEN OF THIS ARTICLE
 SHALL BE BROUGHT WITHIN  SIX  YEARS  AFTER  THE  ACTS  ALLEGED  TO  HAVE
 VIOLATED THIS ARTICLE OCCURRED.
   (D)  WITHIN TEN DAYS AFTER HAVING COMMENCED A CIVIL ACTION PURSUANT TO
 THIS SUBDIVISION, A PLAINTIFF SHALL SERVE A COPY OF THE  COMPLAINT  UPON
 AN  AUTHORIZED  REPRESENTATIVE  OF  THE  ATTORNEY GENERAL. FAILURE TO SO
 S. 8039                             4
 
 SERVE A COMPLAINT DOES NOT ADVERSELY AFFECT  ANY  PLAINTIFF'S  CAUSE  OF
 ACTION.
   (E)  A  PLAINTIFF  WHO  SOLELY ALLEGES A VIOLATION OF SECTION FOURTEEN
 HUNDRED TWELVE OF THIS ARTICLE MUST PROVE THAT SUCH PLAINTIFF  REQUESTED
 A WRITTEN CONTRACT BEFORE THE CONTRACTED WORK BEGAN.
   3.  (A)  A  PLAINTIFF  WHO PREVAILS ON A CLAIM ALLEGING A VIOLATION OF
 SECTION FOURTEEN HUNDRED ELEVEN OF THIS ARTICLE SHALL BE AWARDED DAMAGES
 AS DESCRIBED IN THIS SECTION AND AN AWARD OF REASONABLE ATTORNEYS'  FEES
 AND COSTS.
   (B)  (I)  A  PLAINTIFF WHO PREVAILS ON A CLAIM ALLEGING A VIOLATION OF
 SECTION FOURTEEN HUNDRED TWELVE OF THIS ARTICLE SHALL BE AWARDED  STATU-
 TORY DAMAGES OF TWO HUNDRED FIFTY DOLLARS.
   (II)  A  PLAINTIFF WHO PREVAILS ON A CLAIM ALLEGING A VIOLATION OF ONE
 OR MORE CLAIMS UNDER PROVISIONS OF THIS ARTICLE SHALL BE AWARDED  STATU-
 TORY  DAMAGES  EQUAL  TO  THE  VALUE  OF THE UNDERLYING CONTRACT FOR THE
 VIOLATION IN ADDITION TO THE REMEDIES SPECIFIED IN THIS ARTICLE FOR SUCH
 OTHER VIOLATIONS.
   (C) IN ADDITION TO OTHER DAMAGES AWARDED PURSUANT TO THIS  ARTICLE,  A
 PLAINTIFF  WHO PREVAILS ON A CLAIM ALLEGING A VIOLATION OF SECTION FOUR-
 TEEN HUNDRED ELEVEN OF THIS ARTICLE IS ENTITLED TO AN  AWARD  OF  DOUBLE
 DAMAGES,  INJUNCTIVE RELIEF, AND OTHER SUCH REMEDIES AS MAY BE APPROPRI-
 ATE.
   (D) IN ADDITION TO ANY OTHER DAMAGES AWARDED PURSUANT TO THIS ARTICLE,
 A PLAINTIFF WHO PREVAILS ON A CLAIM  ALLEGING  A  VIOLATION  OF  SECTION
 FOURTEEN  HUNDRED  THIRTEEN  OF  THIS  ARTICLE  IS ENTITLED TO STATUTORY
 DAMAGES EQUAL TO THE VALUE OF THE UNDERLYING CONTRACT FOR EACH VIOLATION
 ARISING UNDER SUCH SECTION.
   4. NOTHING IN THIS SECTION PROHIBITS:
   (A) A PERSON ALLEGING A VIOLATION OF THIS ARTICLE FROM FILING A  CIVIL
 ACTION BASED ON THE SAME FACTS AS A CIVIL ACTION COMMENCED BY THE ATTOR-
 NEY GENERAL PURSUANT TO THIS SECTION; OR
   (B)  THE  ATTORNEY  GENERAL FROM SENDING A NOTICE OF COMPLAINT, UNLESS
 OTHERWISE BARRED FROM DOING SO.
   5. IN ANY CIVIL ACTION COMMENCED PURSUANT TO THIS SECTION,  THE  TRIER
 OF FACT MAY IMPOSE A CIVIL PENALTY OF NOT MORE THAN TWENTY-FIVE THOUSAND
 DOLLARS  FOR  A  FINDING THAT A HIRING PARTY HAS ENGAGED IN A PATTERN OR
 PRACTICE OF VIOLATIONS OF THIS ARTICLE. ANY CIVIL PENALTY  SO  RECOVERED
 SHALL BE PAID INTO THE GENERAL FUND.
   § 1415. ADDITIONAL RIGHTS. 1. EXCEPT AS OTHERWISE PROVIDED BY LAW, ANY
 PROVISION OF A CONTRACT PURPORTING TO WAIVE RIGHTS UNDER THIS ARTICLE IS
 VOID AS AGAINST PUBLIC POLICY.
   2.  THE  PROVISIONS OF THIS ARTICLE SUPPLEMENT, AND DO NOT DIMINISH OR
 REPLACE, ANY OTHER BASIS OF  LIABILITY  OR  REQUIREMENT  ESTABLISHED  BY
 STATUTE OR COMMON LAW.
   3.  FAILURE  TO  COMPLY  WITH  THE PROVISIONS OF THIS ARTICLE 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.
   4. NO PROVISION OF THIS ARTICLE RELATING TO FREELANCE WORKERS SHALL BE
 CONSTRUED AS PROVIDING A DETERMINATION ABOUT THE LEGAL CLASSIFICATION OF
 ANY SUCH WORKER AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR.
   5. THE PROVISIONS OF THIS ARTICLE SHALL NOT BE CONSTRUED OR INTERPRET-
 ED TO OVERRIDE OR SUPPLANT ANY OF THE PROVISIONS OF CHAPTER TEN OF TITLE
 TWENTY OF THE ADMINISTRATIVE CODE OF THE CITY OF NEW YORK.
 S. 8039                             5
 
   § 3. This act shall take effect on the one hundred eightieth day after
 it  shall have become a law; provided, however, that section one of this
 act shall take effect on the same date and in the same manner as a chap-
 ter of the laws of 2023 amending the labor law  constituting  the  free-
 lance  isn't  free act, as proposed in legislative bills numbers S. 5026
 and A. 6040, takes effect.