Many states are re-examining their laws governing individuals who are independent contractors. New York appears to be on the cutting edge of this trend with its recent enactment of S4394-A, a law allowing the same protections for whistleblowers who are employees and individuals who are independent contractors.
Prior New York whistleblower laws
Prior to the enactment of S4394-A, individuals who were employees of governmental entities could disclose any “activity, policy or practice of the employer” which the employee reasonably believed to be “in violation of [any] law rule or regulation.” The employee could not be punished by the employer, but independent contractors working for the same agency were not entitled to this protection. An independent contractor who felt that he or she had been the subject of retaliation was limited to suing the agency in question for damages stemming from alleged independent contractor misclassification.
What the new law provides
The new law extends the protections of whistleblower statutes to independent contractors. The law adds several prohibited retaliatory acts against whistleblowers to the list of prohibited actions. The new prohibitions include blacklisting, threats to contact federal immigration authorities about the worker or his family or household. The new law also permits the recovery of punitive damages if the retaliation was “malicious or wanton.”
Prior provisions of whistleblower law in New York
Before passage of S4394-A, employers could be sued for discrimination in the hiring of independent contractors on the basis of religious beliefs and disabilities. The law did not provide any protection for independent contractors who sued for damages stemming from alleged retaliation.
The way ahead
With the passage of S4394-A, independent contractors now have essentially the same protections from whistleblower retaliation as bona fide employees. Anyone who feels they may have been the subject of retaliation or unlawful discrimination now have a more direct route to a legal remedy. The advice of an experienced labor law attorney can help evaluate the evidence and devise a legal theory under the new law for recovering damages.