On Thursday night, I was in my garage, smashing perfectly gorgeous leftover tile from my recent bathroom remodel into shards and dust on the cold, concrete floor.
Everyone in America who gets paid on a 1099 instead of a W2, or who pays people on a 1099 instead of a W2, needs to understand why I went full-on-green Hulk with rage.
For the past two months, my fellow freelance writers and I have been battling bad legislation, S4204/A5936, in our home state of New Jersey. It’s a version of California’s newly enacted AB5 that would destroy our careers, much as AB5 is wrecking the careers of countless writers, musicians, interpreters, graphic artists, therapists, cartoonists and others in California right now. After two months of 18- to 20-hour days spent organizing online, testifying before lawmakers, lobbying them behind the scenes, making their phones ring off the hook, writing op-eds, being interviewed for radio and TV, and being quoted everywhere from New Jersey’s newspapers to CNBC and USA Today, we’d finally—finally—learned late Wednesday night that S4204 had been pulled from consideration. It will not get a vote in the current lame-duck session.
I woke up Thursday morning dancing around my house like Rocky Balboa. We’d fought on the facts, and we’d won, even though we were up against big-money interests such as the AFL-CIO and huge political forces including New Jersey Gov. Phil Murphy and Senate President Steve Sweeney. The will of the voters had won the day over political muscle and campaign contributions. There was real hope for the debate, and for saving our livelihoods, in the next legislative session.
That hope was crushed just a few hours later, when four of New Jersey’s U.S. representatives—Donald Norcross, Bill Pascrell Jr., Bonnie Watson Coleman, and my personal representative in the GOP-targeted NJ-7, Tom Malinowski—joined with Democratic heavy-hitters including New York’s Jerry Nadler and Alexandria Ocasio-Cortez, and California’s Maxine Waters, to try and drop a version of the same bad legislation on our heads from the federal level.
Before the dead New Jersey version of the bill was even cold in its grave, they’d sent a letter to House Speaker Nancy Pelosi urging her to bring HR2474/S1306, or the PRO Act, to the U.S. House of Representatives floor for a vote. Their letter states that they believe the legislation will “empower the nation’s workers,” even though it contains the same career-killing language as California’s AB5 and New Jersey’s S4204.
Hence, my smashed tile.
The wholly inaccurate messaging that these misguided Democrats keep using is that these bills, written by the AFL-CIO, will stop worker misclassification, which is the fraudulent business practice of wrongly calling people independent contractors to deny them the benefits and protections that come with being a full-time employee. The Democrats have made this message a big plank of their 2020 campaign plans; at the same time that federal lawmakers were singing the AFL-CIO’s song to Pelosi with their letter, New York Gov. Andrew Cuomo was taking his favorite lines for a test drive in New York, and California Assemblywoman Lorena Gonzalez, the author of AB5, was quadrupling down on TV there, continuing to promote that state’s version even as countless freelancers like me lose income following AB5 going into effect January 1.
It’s enraging that Democrats are taking this career-killing stance from sea to shining sea, given that Tom Perez himself, the current head of the Democratic National Committee, already showed America’s lawmakers how to attack the worker misclassification problem during his tenure as Labor Secretary under President Obama—and did so without the draconian language that’s in these state and federal bills.
Perez achieved that goal by using the existing Internal Revenue Service test to determine who is, and is not, an independent contractor. That approach worked just fine. If every state adopted the IRS test, too, then the states and federal government would be in alignment. A bad-actor company caught misclassifying workers anywhere would automatically be breaking the rules everywhere, and could be fined everywhere, too, as it should be. At the same time, people like me, who prefer to work as independent contractors, could continue to do so, because we can pass the IRS test.
Instead, what’s happening now is an attempt to eliminate the existence of independent contractors, including those of us who are operating lawfully under the IRS test. At the core of each of these bills is an overly tough test to determine who can, or cannot, legally be defined as an independent contractor. This test is known as the ABC test, and was written back in the 1930s to reflect the workforce of the Great Depression. It is different from the test that the IRS now uses, and it makes it impossible for many lawful, happy, thriving independent contractors to remain that way in the economy of 2020, when the world looks a lot different than it did back when Americans still listened to Jack Benny on the radio for entertainment.
For freelance writers and editors like me, as just one example, the problem is B-prong of the outdated ABC test. It states that the contractor cannot be in the same line of business as the employer. There is no amount of fancy lawyering that is going to prove a writer making an article for a magazine is in different line of business, so even if we write just one article a year for a publication, get paid well and are perfectly happy, we still fail B-prong of the ABC test, and the publication could face steep fines for “misclassifying” us as independent contractors. Thus, the publishers eliminate their business relationships with us altogether, and freelance writers and editors lose their entire careers.
This ABC test is stringent, too. Contractors have to pass all three prongs, as opposed to the IRS test, which weighs various factors to gain a big-picture look at the person’s situation and make a reasonable judgment about whether she’s properly classified as an independent contractor.
That’s why those of us who prefer to earn our income as freelancers are fighting so hard against these bills, and against the AFL-CIO for pushing them. Many of us are women who would traditionally be a natural fit for the Democratic base, and who have chosen a life of freelancing to avoid the sexism and ageism that come with being full-time employees. According to a 2019 U.S. Treasury report, the number of women who are primary household earners, and whose primary income is from independent contractor work, increased by more than 90 percent since 2001. And many of us choosing this type of work, according to that report, are 55 and older.
To us, this legislation feels like an attempt by 1930s knuckle-draggers to kick us back down to the bottom of the economic ladder. Today, I’m smashing tile in my garage about it. Tomorrow, I’ll be bringing that attitude into the voting booth.
Democrats embracing this draconian, AFL-CIO-backed legislation are attacking the livelihood of a huge chunk of working women, creating a direct threat to our chosen way of life, and leaving us exasperated and enraged in what are, at least for now, America’s bluest states. The problem of worker misclassification can, and should, be solved under existing IRS rules that also allow every American to choose the way she wants to live and work. Legislation containing the old-fashioned ABC test must be abandoned at the state and federal levels.
Real leaders need to stand up to protect every hardworking American, including thriving independent contractors like me.
