Have you left the “regular” workforce and are you now working for yourself? Though you may gain flexibility and a degree of freedom, this can also result in fewer legal protections, lost benefits, and higher taxes. More than a third of the American workforce is made up of independent contractors. These people may not meet the legal definition of an “employee”, but they’re increasingly doing the work employees used to do in this country.

Sexual harassment in the entertainment industry has gotten much deserved attention, particularly accusations by actresses against movie producer Harvey Weinberg. But if these actresses are working as independent contractors, not employees of his company, what legal rights would they have? It depends on the jurisdiction.

Traditional anti-discrimination laws cover employees, not independent contractors, but there are important exceptions.

Title VII of the Civil Rights Act of 1964 is the main federal law that addresses sexual harassment in the workforce. It covers employees, not independent contractors, but the category a worker falls into depends on the facts of the situation. Even if the person signs an agreement stating he or she is properly categorized as an independent contractor and is treated as such for tax purposes, that is not the end of the inquiry.  According t the IRS and NJ state officials, if the alleged employer retains enough control, actual or potential, over how the work is performed, the hours of work, and the tools of the job, then a worker may have an excellent argument that s/he has been the victim of unlawful misclassification, which may carry civil penalties and fines for wage theft.

Nearly all states and some cities have anti-discrimination laws in place. New York and Pennsylvania laws protect independent contractors from discrimination and harassment. New York City law offers protections too, but not the laws of New York State. If you’re an actress performing in Manhattan and you’re sexually harassed by the person who hired you as an independent contractor, then you have some legal protection. If you’re outside the five boroughs, then probably you do not.

Under the New Jersey Law Against Discrimination (N.J.S.A. 10:5-12(l)) it’s illegal

For any person to refuse to buy from, sell to, lease from or to, license, contract with, or trade with, provide goods, services or information to, or otherwise do business with any other person on the basis of the…sex…of such other person…

The law was interpreted by New Jersey’s Appellate Division in 2009 as stating that “sex” as used in the statute also includes sexual harassment (“Where, as here, the harassment consists of sexual overtures and unwelcome touching or groping, it is presumed that the conduct was committed because of the victim’s sex.”).

The case involved the plaintiff, a female business owner, who claimed the defendant’s branch manager sexually harassed her and stopped purchases from her business because she didn’t comply with his demands for sex. The trial court dismissed the case because the judge didn’t see discrimination on the basis of sex as including sexual harassment. The appeals court overturned the lower court decision.

If while working as an employee or independent contractor in New Jersey you feel you’re being pressured into have sex by an employee or the work environment for you has become so sexualized due to frequent comments or actions by others, contact our office.  This is the “Me Too” Moment in New Jersey.  Call us for a near-term reduced fee initial consult.  We will meet face to face, listen to your facts, explain the law, and together figure out the fastest and best ways for you to achieve social and economic justice.  We are compassionate counsel and tough advocates. We will help you vindicate your legal rights.  Call today.  You will be glad you did.