Kim Kavin is co-founder of the nonpartisan grassroots advocacy group Fight forFreelancers
A well-practiced troupe that has been roving through California, Minnesota and Washington, D.C., will soon make its second appearance in New Jersey, trying to establish government precedent for restricting self-employment everywhere.
This month’s performance will be at a June 23 public hearing about a New Jersey Department of Labor & Workforce Development proposal to redefine who can legally earn income as an independent contractor. The rulemaking comes a half dozen years after legislators in New Jersey tried and failed to limit independent contracting by copying California’s Assembly Bill 5.
Back then, California Governor Gavin Newsom and Teamster/Assemblywoman Lorena Gonzalez claimed AB5 would protect misclassified workers who should be employees with a pathway to unionize. Then-New Jersey Senate President Steve Sweeney, a longtime union leader, followed their lead.
Everyone agreed that misclassification happens, and that bad-actor companies saying employees are independent contractors to deprive them of benefits should be held accountable.
However, independent contractors also said this type of policymaking doesn’t target bad actors. It threatens the majority of us who are happily self-employed.
All kinds of Californians, from nurse anesthetists to sign-language interpreters, decried AB5. Gonzalez admitted it was costing legitimate freelancers substantial income. Newsom’s former chief of staff said: “It’s truly horrific how many people are negatively impacted by it.”
With California in turmoil, New Jersey’s owner-operator truckers—77% of the driver workforce at the Port of NY&NJ—stood shoulder-to-shoulder with freelance writers like me and other independent contractors at our Statehouse, giving hours of testimony. Democratic legislators appeared stunned as one after the next, women and people of color pleaded, sometimes through tears, for them to stop.
And boy, were we right. After AB5, California’s job-creation pace tanked by 81%. For affected professions, self-employment took a 10.5% hit and overall employment dropped too. Union membership fell. Members of the California Advisory Committee to the U.S. Commission on Civil Rights described AB5 as having a decidedly negative impact. A California assemblyman is now calling on the U.S. Department of Justice to investigate.
And yet, an overwhelming number of Democrats in Congress—including New Jersey gubernatorial nominee Mikie Sherrill—along with a smattering of Republicans, stubbornly continue to support California-style freelance busting with the Richard L. Trumka Protecting the Right to Organize Act, named for the AFL-CIO’s former president. And New Jersey is targeting us anew, in ways attorneys say “far exceed” norms and will “eviscerate” any chance of establishing independent-contractor status—in a state where about 1.7 million of us earn some or all of our income this way, and where the proposed rule itself says it won’t create a single job for any of us. Republican gubernatorial candidate Jack Ciattarelli is already campaigning on a promise that if he’s elected, he’ll undo what the New Jersey Labor Department is trying to do to us right now.
In May, I testified before Congress for the second time in two years about how America’s tens of millions of independent contractors need protection. We finally have hope: U.S. Rep. Kevin Kiley, R-Calif., has sponsored the Modern Worker Empowerment Act—legislation that New Jersey would be wise to emulate, and that my congressman in the NJ07, Tom Kean, Jr., has co-sponsored. The Trump administration stopped enforcing, and is reconsidering, the Biden independent contractor rule that several of us freelancers from New Jersey sued in federal court to try and stop. Deputy U.S. Labor Secretary Keith Sonderling is now working worldwide to limit what he calls California’s “catastrophic” outcome.
I also testified in Congress last month—and will testify again Monday in Trenton—about how the research underpinning all this freelance busting requires serious scrutiny. Union-affiliated organizations such as the National Employment Law Project are making claims based on data as old as the 1980s. This research is not just antiquated, but also heavily influenced by unionists including the AFL-CIO.
My testimony also revealed how New Jersey Governor Phil Murphy’s task force report claims misclassification rose 40% between 2009 and 2019. The research, in fact, says the prevalence of independent contracting grew 40% from 2005 to 2015. Of course it did: In the Great Recession, a lot of people lost traditional jobs. They turned to freelancing. It’s not errant behavior; it’s earning a living.
I’m far from alone in voicing the truth. Karen Anderson, founder of the grassroots advocacy group Freelancers Against AB5, testified before Congress about how California independent contractors in more than 600 categories of professions have been affected. Anderson also wrote about how Gonzalez used bogus data when introducing AB5—a law strongly supported by NELP and the California Labor Federation, AFL-CIO.
Freelancer Brittany VanDerBill snagged a seat on the Minnesota attorney general’s misclassification task force. As its only independent contractor, she was outnumbered by the AFL-CIO and several unions, watching presentations from groups including NELP. She documented how the goal seemed to be reclassifying independent contractors as unionizable employees.
And here in New Jersey, just this month, some Democrats finally rose up publicly and raised their voices against these attacks on our livelihoods. State Senators Gordon Johnson, Andrew Zwicker and Joe Lagana—all committee chairmen—sent a letter to Labor Commissioner Robert-Asaro Angelo that noted “extensive public interest” on the proposed rule and warned it may cause “substantial negative impact.”
Those of us who prefer to be self-employed or have a side gig are the continuing targets of a good old-fashioned road show. It’s long past time that lawmakers of good conscience in both parties stop these purveyors of snake-oil research who keep moving around the country, threatening everyone’s fundamental freedom to earn a living.
Congress and the U.S. Labor Department must protect us. California should repeal AB5, and New Jersey must withdraw its proposed rule.
This relentless, remorseless freelance busting needs to end, once and for all.
Kim Kavin is co-founder of the nonpartisan grassroots advocacy group Fight ForFreelancers. She writes Freelance Busting on Substack and is working on a book.
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