Less than a month after The New York Times editorial page ran an op-ed by Senator Tom Cotton that was so widely denounced, it led to the resignation of editor James Bennet, the Editorial Board has again failed its readers — this time, by penning an editorial that not only is an affront to knowledgeable political discourse, but that also ignores basic principles of research and journalism.
The June 27 editorial “Uber Rides Cost More? OK” omits a shocking number of facts, and gets other facts dead wrong, in an attempt to sway readers into supporting highly controversial labor legislation. Like the Cotton op-ed, the Uber editorial is a strongly worded, but superficially thought-out embrace of questionable partisan talking points. The only difference with the Uber editorial is that this time, it’s Democratic talking points instead of Republican ones, doing a disservice to all Democrats who understand that this complex labor issue needs to be understood much, much differently.
In their editorial, the Times editors pronounce their support for a labor law that went into effect in California on January 1. The editorial makes the case that this law, called AB5, will force app-based companies such as Uber to classify drivers as employees instead of independent contractors, albeit at a cost to consumers. The editorial encourages lawmakers in New York and Illinois to seriously consider following California’s lead with similar legislation elsewhere. The upshot of the editorial is that if the law’s only downside is an increase in Uber rates, that’s fine.
The problem is, the consequences of this legislation go far beyond a few extra bucks for a ride to the airport. Nothing has changed for Uber drivers in California since the legislation went into effect six months ago. What has happened, instead, is a drawn-out legal battle between Uber and the state while thousands of other Californians are being thrown out of work in more than 300 professions documented so far — none of which The Times even bothered to mention, if the editors even realized it is happening at all.
On the most cursory level, the editors do not understand the facts underpinning the legislation. They wrote, erroneously, that California’s AB5 “codifies a 2018 State Supreme Court ruling.” This is inaccurate. The California law dramatically expands the court ruling. The court applied employment criteria called the ABC Test only to wage order violations, and wrote that the state Legislature could “revise any provision of the current wage orders through the enactment of new legislation.” Instead, California’s Legislature expanded use of the ABC Test well beyond wage order violations, so that it also affects unemployment insurance and workers’ compensation proceedings — in a way that caused massive economic damage.
The harm to working people was so swift and severe that within the first few months of California’s AB5 taking effect, more than 30 bills were introduced to amend or repeal it, including a cleanup bill by AB5’s own sponsor that is still winding its way through the legislative process in Sacramento. Watching the California chaos play out from Washington, D.C., Democrats in the U.S. House of Representatives passed a federal version of AB5 as part of the PRO Act in February — while privately promising worried constituents that an amendment was added to ensure the ABC Test would not be applied in the same overly broad way that California did it.
None of these facts seem to have penetrated the process of The Times Editorial Board, which failed to explain to readers how the labor legislation actually works, and why it affects far more than just Uber drivers or the cost of a ride.
At the core of the legislation is the ABC Test, a three-prong regulatory approach to determining who is, and is not, a company employee as opposed to an independent contractor. B-prong of the ABC Test states that the worker cannot be in the same line of business as the company hiring her for so much as a single project. This affects far more than Uber drivers. It means that unless she is fully onboarded as a corporate employee, a specialty lawyer can’t legally do even one hour’s work for a law firm. A per-diem healthcare worker can’t legally pick up a single extra shift at a hospital or clinic. A musician can’t legally perform a single concert at a musical venue. A freelance accountant can’t do any work for an accounting firm during tax season. A freelance editor can’t touch a single article for a publisher. A freelance veterinarian can’t ever spend a day helping animals at a veterinary clinic.
The Times’ own newspaper carriers can’t even pass the ABC Test, as The Times itself reported in 2019. Their work would become illegal, too, making home delivery of newspapers obsolete. The ABC Test would also eliminate all the news coverage that freelance writers currently produce.
Another factual error that the Times Editorial Board makes is calling the ABC Test an “updated classification of on-demand workers.” The ABC Test is, in fact regressive, not progressive. It doesn’t update anything.
The ABC Test was written back in the 1930s as labor reform, during a time when factory workers included children. Its three-prong approach is an overly simplistic relic of a bygone century when the Internet and laptop computers didn’t even exist. It is a laughingstock of an employment classification test compared to the robust, modern IRS Test, which determines employment status by using more than 60 questions to help regulators understand the true nature of a person’s work in 2020. Existing federal law, when regulators apply it, absolutely works to stop misclassification problems. During the month of June alone, the U.S. Labor Department used it to recover $44,400 in back wages for misclassified workers at a Texas company; and to file suit claiming that a Michigan-based company owes more than $1.5 million to misclassified workers.
Perhaps most disturbing about the Times Editorial Board’s position is that it failed to inform readers that this legislation, in hearing after hearing, has had minimal support among real people it affects. Citizens who are registered voters (Democrats and Republicans alike) came out against it in statehouse after statehouse, from California to New York to New Jersey.
Proponents of these ABC Test laws are almost exclusively union bosses. It was revealed during California Senate testimony that the AFL-CIO actually wrote the law. AFL-CIO President Richard Trumka said that any Democrats who fail to vote in favor of it will be denied campaign funding and support. With union membership at an all-time low in America, the AFL-CIO’s goal is to buttress its own membership by forcing more people out of independent contractor work and into traditional, unionizable jobs (at a time when, because of the pandemic and resulting economic crash, millions of those jobs no longer even exist).
If the Times Editorial Board actually looked past the AFL-CIO’s talking points and asked the people choosing to work as independent contractors how they feel about being forced to seek traditional jobs, editors would have found that in survey after survey since 2018—for the U.S. Labor Department, ADP Research and, most recently, Gallup—70 percent to 80 percent say they want to remain independent contractors. Surveys repeatedly show that the vast majority of independent contractors prefer to work the way they are working, and that many of them earn just as much, and are often happier, than people in the kinds of traditional jobs this legislation would force them to seek.
The financial aspects of this research mirror a mammoth 15-year study of tax data the IRS and U.S. Treasury Department released last year. It showed that while a growing percentage of independent contractors are at the bottom of the economic spectrum — a fact that the report says clearly predates the rise of the gig economy and companies like Uber — the largest chunk of independent contractors are in the opposite position. They are in the top quartile of U.S. earners, with all other independent contractors falling in between. Independent contractors are most often people in the middle or upper classes, living the American Dream.
The IRS report also showed that since 2001, the number of female breadwinners who are independent contractors has risen a staggering 90 percent. Women (like me) who choose independent contractor work often love the work-life flexibility of being their own bosses, and of having no glass ceiling over their heads.
With labor legislation based on the ABC Test, the work of these self-employed Americans is endangered not only in states like California, Illinois and New York, which the Times Editorial Board mentioned. It is in danger everywhere. Presidential candidate Joe Biden has promised a federal version of California’s ABC Test legislation if he wins the White House this fall.
This level of Democratic support for ABC Test legislation needs to be seriously debated, not given lip service. America’s economic situation has radically changed in the past few months because of the Covid-19 pandemic. The whole country just got a bitter taste of what happens when the government shuts down people’s ability to earn a living. Making the ABC Test a nationwide labor law could damage the work prospects of, by various estimates, the 15.5 million to 53 million people who are doing independent contractor work in the United States today.
Governors in the bluest of blue states have already come to understand this political reality. After seeing what happened in California, the opposition to ABC Test legislation in New Jersey and New York within the past year was so strong — often coming from many of the women, marginalized people and others who traditionally make up the Democratic Party base — that both Democratic-controlled states stalled their bills for reconsideration.
And opposition has only grown as the pandemic’s effects on how we all work become clearer. Within the past month in California, everyone from the head of the Los Angeles Urban League to the head of the California Black Chamber of Commerce has blasted the ABC Test legislation as having “crushed thousands of Black businesses.” The California Hispanic Chamber of Commerce, less than two weeks ago, took the sponsor of the state’s law to task on Twitter, asking why she was “ignoring that drivers want to remain ICs by a 4:1 margin.”
The Times editors do not mention any of this opposition, or the fact that in other states, most recently Iowa in mid-June, lawmakers are enacting competing legislation to protect the work of self-employed people. The editors fail to inform readers that in California, the decision to support this legislation has already helped upend the election hopes of one Democratic candidate for office, with independent contractors of all political persuasions working at the grass-roots level to derail her campaign so they can keep their careers.
All of which, heading into a major election this fall, seems like pertinent information that readers of The New York Times editorial page might like to know, well beyond the fact that they might need to pay more for an Uber to the airport. Democrats and their favorite candidates need to understand that if what happened so far in blue states that tried to push ABC Test laws through is any indication, the actual impact they will have on the national election is creating a major, senseless headwind against Biden and other Democrats.
The Times editors, at the end of the editorial, take the position that ABC Test legislation “appears sensible and should be seriously considered” elsewhere. Appears is the key word in that statement. To a lot of people, Senator Cotton’s op-ed, calling for the use of military force against American citizens during riots on U.S. soil, also appeared sensible at the first, uncritical blush.
It was only after a real debate of all the facts that most rational people realized the position should, and must, be abandoned.
Kim Kavin has worked full-time for the past 17 years as a freelance writer and editor, following a decade as a staff editor in newspapers and magazines. She co-founded the nonpartisan, ad hoc coalition Fight For Freelancers, and is a member of the American Society of Journalists and Authors, which sued the State of California over AB5’s constitutionality.