Court Finds Issues of Fact as to Whether Plaintiff Was Protected by the New York State and City Human Rights Laws

In Wright v. Liao, No. 157161/2017, 2020 WL 41671 (N.Y. Sup Ct, New York County Jan. 03, 2020), the court discussed and addressed who is entitled to the protections of the New York State and City Human Rights Laws.

Specifically, the court explained:

In order to determine who is an employee under the both the NYSHRL and NYCHRL, the court looks to four relevant factors: (1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal\; and (4) the power of control of the servant’s conduct (Griffin v Sirva, Inc., 29 NY3d 174, 186 [2017], citing State Div. of Human Rights on Complaint of Emrich v GTE Corp., 109 AD2d 1082 [4th Dept 1985]). The vital element in determining an employee-employer relationship is whether the employer exercises control over the performance over the work (Griffin v Sirva Inc., 835 F3d 283, 291 [2d Cir 2016]; Scott v Massachusetts Mut. Life Ins. Co., 86 NY2d 429 [1995]).

Under the NYCHRL, which affords more protection to employees than the NYSHRL, the definition of an “employee” encompasses independent contractors. “[N]atural persons employed as independent contractors to carry out work in furtherance of an employer’s business enterprise who are not themselves employers shall be counted as persons in the employ of such employer.” (Admin Code § 8-102[5].) Indeed, the NYCHRL does not distinguish between employees and independent contractors for purposes of prohibiting discriminatory actions (see Sellers v Royal Bank of Can., US Dist Ct, [SDNY, 2014], affd, 592 Fed Appx 45 [2d Cir 2015] [unlike its state and federal counterparts, the NYCHRL protects independent contractors “if they are ‘natural persons’ who ‘carry out work in furtherance of an employer’s business enterprise’ “]; O’Neill v Atlantic Sec. Guards, Inc., 250 AD2d 493, 493 [1st Dept 1998]). As a general rule, control of the method and means by which work is to be performed is a critical factor in determining whether one is an independent contractor or an employee.

Applying the law, the court held that an issue of facts exists as to whether plaintiff was an employee of various entities under these statutes.