I mentioned a bunch of research on this podcast. Here are links to the original source material:

67% percent of Gen Z cite having multiple ways of earning money as essential for achieving financial security. Source: Fiverr

Gen Z makes up 28% of the independent workforce. Source: MBO Partners

“70% of Gen Z freelancers say they freelance to have flexibility in their schedule; 64% to work in an environment not restricted by the limitations of age, race, or gender expectations; 64% to work from the location of their choosing; 62% to be able to pursue work they are passionate about or find meaningful; and 61% to take more control over their personal development and career path.” Source: Upwork

“Nearly 25% of Gen Z respondents now believe that freelancing is more stable than a traditional full-time job.” Source: Fiverr

“Almost one-fifth (18%) of Gen Z responders think being a freelancer makes them less likely to be replaced by AI, thus immune to AI displacement.” Souce: Fiverr

But Wait, There’s More…

After we recorded this podcast, I became aware of new research that also includes Gen Z.

As reported in Business Insider, a July survey of Americans by Goldman Sachs Asset Management and the behavioral economics firm Escalent found that “Gen Zers were most likely to say they earn or have earned money outside their primary job; millennials followed closely behind. The report said that’s despite most Gen Z and millennial workers reporting their jobs provide financial stability.”

According to the report, though, that financial stability isn’t quite cutting it when it comes to achieving major financial goals:

“Eighty-three percent of Gen Z and 78% of millennials said they put major financial goals on hold. Forty-one percent of millennials have delayed emergency savings despite being employed, and 30% said they delayed housing or homebuying goals. For Gen Zers, the shares were 35% and 34%, respectively.”

Yet again, the takeaway message is that the last thing lawmakers should be doing is limiting anyone’s options to try and achieve the American dream. Being able to earn income as an independent contractor, whether full-on or as a side hustle, has always been an option that people can choose in our country.

And it always should be.

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Senator after senator described statewide confusion about the rule among business owners, attorneys, accountants and constituents. Senators said people are constantly asking them about the legality of continuing to hire every conceivable kind of working person, from financial advisers to babysitters.

One senator described what’s happening in some industries as “panic mode.” Another said he convened accountants in his district to ask about the independent-contractor rule, and “they all had a different answer.” Yet another asked, “Who’s the guru of the determining if you pass or fail the ABC Test?” and wondered aloud if there was going to be a Division of ABC Test Clarification within the state’s Labor Department.

Numerous senators floated ideas about what the Legislature might do next, from discussing the ABC Test that underpins the independent-contractor rule to creating a “big, beautiful bill” that would exempt countless professions from it.

None of this chaos is surprising to the many thousands of us who expressed 99% public opposition to this independent-contractor rulemaking. What we are experiencing right now in my home state of New Jersey mirrors the chaos that befell California after its ABC Test law went into effect in 2020, ultimately harming self-employment and overall employment with significant evidence of a disproportionate, negative impact on women, immigrants, people of color and the politically powerless.

However, a couple of things did surprise me about last Thursday’s hearing in Trenton.

One surprising moment happened when acting Commissioner Jarvis testified:

“I can tell you that there are several states that have passed legislation allowing Uber drivers and gig workers to organize, right? Stating that they’re employees under their state’s law, you know: California, Illinois, Massachusetts, there are several states that have done that.”

Numerous attorneys have explained at great length (see here and here) that what these states actually did was institute a scheme called sectoral bargaining that gives union organizers a new kind of access to independent contractors. Sectoral bargaining is not reclassifying the independent contractors as employees the way the ABC Test might do, but instead is a change to how union organizing can be done. A bill was just introduced to give union organizers this kind of new access so they can target rideshare drivers in New Jersey, too.

I was also surprised during last Thursday’s hearing about how openly so many senators from both political parties described the widespread confusion and frustration about New Jersey’s ABC Test—which, if we’re being honest, is confusion and frustration the Legislature helped to create with its failure to protect independent contractors despite our continued requests for help since at least 2019.

Any or all of the ideas these senators floated at last week’s hearing could now end up becoming law, which is why I used an AI program to transcribe the hearing. That AI-generated transcript is below.

This was an audio-only hearing with no available video, and I have done my best to identify all the speakers accurately. I also noted below where I deleted parts of the hearing about topics other than independent contractors, and I deleted duplicate words that are inherent to AI-generated transcripts.

If there are any questions about the exact spoken statements, you can refer to the archived audio recording of the hearing.

Kevin Jarvis Hearing Transcript

Acting Labor Commissioner Kevin Jarvis: Honorable members of the Senate Judiciary Committee, thank you for allowing me the opportunity to come before you today. I appreciate your consideration, and I am humbled by and grateful to Governor Sherrill for the trust she’s placed in me on behalf of New Jersey’s workforce. I want to thank my wife and daughters for their unwavering encouragement, love and support. I also want to thank my mother, my father and my three older brothers for showing me what hard work with dignity can accomplish, and the many life lessons they taught me. Although, in fairness, I could have survived a couple fewer life lessons from my older brothers.

It’s an incredible honor to be asked to return to the Department of Labor and Workforce Development as commissioner. Before my most recent experience practicing labor law, I proudly served as the chief of staff at the department under then-Governor Corzine. For nearly four years, I worked closely with former Commissioner Socolow and members of the Legislature to shape departmental policies and implement New Jersey’s labor laws. Prior to that, I worked at the State House and in some of these very committee meeting rooms as a research associate for the Assembly Democratic office and a legislative affairs coordinator for the state AFL-CIO. And I represented injured railroad workers and workers who had been exposed to asbestos as an attorney in private practice.

For the entirety of my professional life, decades now, I have been at the intersection of workers’ rights and employers’ responsibilities. I have advocated for workers and collaborated with employers to navigate complex labor and employment laws to keep New Jersey’s workforce moving forward. In my private practice, I negotiated for fair contracts, defended union members that had been unjustly disciplined, and represented people in their efforts to form or join a union as part of their desire to improve their standard of living. I am immensely proud of that work.

I also grew up in a working-class neighborhood in South Jersey, a fellow Vinelander. My father worked as a machinist in a glass house, and my mother was a bookkeeper in a small retail store. Everything I am today is because of them. Our neighbors were auto mechanics, factory workers and schoolteachers. Things like unemployment insurance, workers’ compensation, job training—those are services that were critical to my friends and neighbors, and are critical for people from my old neighborhood and thousands of similar neighborhoods throughout the state.

So I recognize, on a visceral level, the importance of this department and that it be responsive to people’s needs. I understand how the law works, both on paper and in real life. I understand that workers need good employers who can prosper and make a profit. I understand that this is not a zero-sum game where workers win if employers lose and vice versa. Both sides need the other to do well. Work has dignity, and workers deserve safe workplaces and fair treatment. Employers deserve clear rules and consistent enforcement. The system should work for everyone, and it should work efficiently.

Taken together, all of my experiences have helped prepare me for this incredible opportunity. I am committed to advocating the importance of on-the-job safety, effective enforcement, and a workforce system that takes its obligations to both workers and businesses seriously.

The Department of Labor in New Jersey touches the lives of millions of New Jerseyans. In fact, there are more than 4.7 million workers in our state. That’s more than at just about any other time in our state’s history. We support families during job loss, illness and major life events. We help train people for better careers. We enforce the law so that honest businesses don’t get undercut. What we do at the department affects the heartbeat of the state’s economy.

We have just under 300,000 employers in New Jersey. That’s also more than almost any other time in our state’s history. Those numbers are reflective of the important work this legislature and the former governor did on behalf of the people of New Jersey. And Governor Sherrill is building on these efforts to move New Jersey into the next chapter by cutting red tape, strengthening our workforce training systems, and attracting new businesses to New Jersey, and I’m excited to be a part of that.

My experiences have taught me that effective leadership depends not just on listening to staff, but working in collaboration with people carrying out the mission of this department every day. These are dedicated professionals who work day in and day out through snowstorms, recessions and even global pandemics to provide the services and benefits relied upon by millions of working New Jersey residents and their families. I am proud of their work and their professionalism.

I also place immense value on engaging directly with workers, business owners, the Legislature and local officials who care deeply about ensuring jobs and opportunities for all. Six years ago, the men and women of this department were called to action during what we can only hope was a once-in-a-lifetime pandemic and economic crisis. By any fair measure, the department more than rose to that challenge, triaging this unprecedented scenario while laying the groundwork for innovation, modernization and better customer service. I recognize there were problems. There always will be. But the test of character and resilience isn’t measured in how many times you fall, but in how many times you get back up. We are committed to learning from our mistakes as well as our successes to constantly improve the system and how it delivers for the State of New Jersey.

And make no mistake: It has been delivered. In recent years, the department has recovered tens of millions of dollars in unpaid wages and penalties, putting money back into workers’ pockets and holding bad actors accountable. Those results reflect a stronger, more strategic approach to enforcement, including expanded tools that allow the department to step in when employers violate the law and ensure businesses come into compliance.

But protecting workers also means protecting the businesses that play by the rules. Too often, responsible New Jersey employers are forced to compete against companies that try to undercut them by skirting the law. That’s not fair. It’s not fair to workers, to taxpayers or to the businesses doing the right thing. Thanks to strong bipartisan tools that allow us to enforce our labor laws, New Jersey has become the gold standard for tackling issues like misclassification and wage theft. Those efforts are paying off not just for workers, but for employers as well.

My focus will be on continuing the vital work that’s already underway, strengthening enforcement, shoring up our programs and systems, supporting our staff, delivering programs and services more efficiently, and improving interactions with our department for workers and employers alike. To do this, we need to expand modernization efforts beyond unemployment insurance. We’re already started in some of those areas that the department oversees.

As Governor Sherrill has said many times, prosperity for everyone, not just a few, must be a top priority. This role carries real responsibility for the people and businesses of New Jersey, and I don’t take that lightly. With your support, I assure you, I am ready to roll up my sleeves and get started. I would be honored to have your vote of confidence today, and I’m happy to answer any questions you may have for me. Thank you.

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Senate Judiciary Committee Chairman Brian Stack: Commissioner, thank you very much. And just from my experience, working with your office has been tremendous. You’ve done a great job there, and your employees do a great job. I appreciate everything that you do.

Jarvis: Thank you, senator.

Senator Stack: Sure. Senator Bramnick.

Senator Jon Bramnick: Morning, acting commissioner.

Jarvis: Good morning.

Senator Bramnick: So recently, I hired someone, and we had the discussion of whether or not the person was going to be an independent contractor—doesn’t work necessarily with me—and we went to two or three accountants. So the amount of money being paid to him is $10,000 a month if he’s an independent contractor, $11,400 if he becomes an employee. Just take those facts for a minute. Is that consistent with how you understand about 14% increase as an employer if I hire somebody as an employee versus independent contractor?

Jarvis: Thank you for the question, senator. So I will say that we don’t track what that cost is necessarily because it may differ depending on the industry. Depending on—

Senator Bramnick: But you wouldn’t necessarily disagree with the fact there could be a 14% increase independent contractor versus employee? That’s not necessarily out of the realm of reality?

Jarvis: I wouldn’t necessarily know one way or another. It very well, it very well could be.

Senator Bramnick: Let me ask you this: Don’t you think it’s relatively important to know the extra costs that might be a burden to employee, to an employer? Isn’t that something you would consider in terms of the decision-making process of eliminating or, say, making it more difficult to have independent contractors?

Jarvis: I think that we all kind of know intuitively that there that there may be some added cost to the employer. As I stated, the amount of those added costs is going to be dependent upon the job, the industry, what exactly that is. At the end of the day, though, the thing that I believe we need to keep our focus on is that the Unemployment Compensation Law and the ABC Test was passed as remedial legislation to protect workers who have been dislocated from jobs and laid off, right? And so we do that, taking into account that employers have to pay into the fund, right? And taking into account that there is an effect on employers. But we can’t lose sight of the fact that at the end of the day, it’s designed to protect workers, right?

Now, oftentimes, what happens is we see individuals who are independent contractors who don’t necessarily appreciate all that that means, and they come to the Department of Labor and they file a claim, and we undergo our analysis, right? And the fund, if we determine that that individual was improperly classified, the fund pays benefits, even though that employer had—

Senator Bramnick: Look, I’ll stipulate that part of change, or should I say, enforcing the rules or laws or regulations regarding independent contractors has to do with supporting these type of funds like unemployment compensation. I understand that completely, but that’s—I think everyone understands that. Now I’m going to go to the next part.

This ABC Test, there is a lot of confusion because it is fact-sensitive. For example, the insurance agents may be deemed an employee. So my question is, tell us what the penalties are when you misapply this ABC Test.

Jarvis: So, there are statutory penalties. There’s interest payments if there’s a determination that the individual had been misclassified for a certain period of time. We conduct an audit. We make a determination of how many individuals have been misclassified. And so the interest and penalties are going to be kind of dependent upon that.

Senator Bramnick: Can you give us some example? Because when we talk about independent contractor or employees and a misclassification, which can happen unintentionally, because it is complicated, can you have any sense of what it might have cost an employer when they misclassify an employee?

Jarvis: Yeah, so I can get you from the statute the specific amount of penalties that the department is allowed to assess. It’s not something I have off the top of my head.

Senator Bramnick: Do you recall any examples that are public record of how much it cost an employer that misclassified an employee or employees?

Jarvis: Well, I can tell you some of the settlements that we have entered into, right?

Senator Bramnick: Yeah, that’s good.

Jarvis: I think one of the ones that everyone is very familiar with is that, you know, we had brought a case involving misclassification against Uber, right? That case involved 297,000 workers, and the ultimate settlement was $100 million, right? The percentages of that, off the top of my head, that were wages as opposed to penalties and interest, I don’t—

Senator Bramnick: That’s fair comment.

Jarvis: But that’s also 300,000 people.

Senator Bramnick: So, Uber now, in the State of New Jersey, I assume they’re on notice that their drivers are employees?

Jarvis: I would certainly think so.

Senator Bramnick: OK. And how many other states, if you know, deem Uber-type drivers as employees versus independent contractor? And is it fair to say that certain states have, by statute or other mechanism, made them independent contractors?

Jarvis: Well, every state—so, the ABC test is a product of New Jersey state law. Every state has a different test on how they make a determination of whether or not a putative employer is an employer as opposed to an independent-contractor relationship. I can tell you that there are several states that have passed legislation allowing Uber drivers and gig workers to organize, right? Stating that they’re employees under their state’s law, you know: California, Illinois, Massachusetts, there are several states that have done that.

As far as how any individual state is going to characterize what that employment relationship is, it’s going to be a process.

Senator Bramnick: So it might differ. Some states may deem them to be independent contractors or, quote, independent contractor or employees. So it depends on the state. But in our state, they’ll be deemed to be employees at least based on the prior penalty, et cetera.

Jarvis: Certainly, in that in that case, the determination that the Department of Labor made was that they were employees and had been misclassified.

Now, as I always stress, that decision is based on the facts of that case. In the intervening time, it’s quite possible that a company changes its business model or practices. And if we had to go back and look at them again, it might be a different, it might be a different result.

Senator Bramnick: As the commissioner of labor, in essence, you would agree that the governor’s office supports this ABC Test, because I know there was some request by the Senate president to delay this. So it’s fair to say that what you’re telling us about the implementation of this test is consistent with the policy of the governor’s office, correct?

Jarvis: Well, what I can say to you is that the governor’s office supported allowing the regulations to go into effect. The test itself has been a part of our law for 90 years. The regulations would simply codify—

Senator Bramnick: Apologize for the form of the question. The governor, I also agree with you on that.

So I’m just going to, a couple examples of where I think it has detrimental effect on both our economy and on employers, let’s say, doing business in the state.

So there used to be reporters who would go to a council person, a council meeting, in Westfield, and maybe they’d cover Westfield one night, Cranford the next night. They only worked two evenings a week. They wrote an article for the local TAP or newspaper or Westfield Leader, and a lot of these people are being laid off because the costs are increased by the so-called enforcement of the ABC Test, or what, or should I say, our policies in the state of New Jersey to make them, quote, employees. What’s your feeling as to whether or not it does have some effect on hiring by employers, such as the example I gave you? You think it has some effect with respect to them not necessarily hiring somebody because of the cost?

Jarvis: I, to be perfectly frank, senator, I would assume that any business, when hiring people, does some sort of a cost-benefit analysis to make a determination of whether or not the business model that they currently have can absorb those costs and balance that against the need. What I can tell you is every case is extremely fact-sensitive, right? And so the situation you laid out, there may be additional facts that would be relevant to us.

I can also tell you, I’m not aware of any enforcement action by the department to go after these individuals that, that you mentioned. And so, if the business is making that decision, the business is making it, I guess, based on how it reads the law, which is not always necessarily going to be—

Senator Bramnick: I’m going to leave you with this question: Tell the employers of the state of New Jersey, in as practical words as possible, how they know whether or not they’re paying somebody, whether or not that person may be deemed an employee and then suffer the penalties that we’ve seen employed in the past.

Jarvis: Sure, thank you. And the easiest way to do that is to read the regulations.

[Laughter]

But here’s why here’s why I say that, senator. Because the regulations take the case law and the final agency determinations that the Department of Labor has relied upon over the intervening 90 years and listed them. So those factors that everyone sees in the regulations are what the department would have relied upon to make that decision anyway. And so now, the easiest way to make that determination is to look at the regulations. It is a roadmap for employers to make a determination based on how the department views this, based on how the courts in New Jersey have viewed it, would my business model fit into the independent=-contractor model?

Senator Bramnick: I can see why you were a successful trial lawyer prior coming to New Jersey, but, well, I have nothing further.

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Senator Stack: Senator Singleton.

Senate Judiciary Committee Vice-Chair Troy Singleton: Thank you, Chairman. Commissioner, it’s good to see you as always. As this is actually a surreal moment for me as his former intern when I was in college. This is really cool. Luckily, he was very kind to me, so I think he might be all right with a vote today.

[Discussion of AI and workforce development]

[Discussion of trade jobs]

Senator Singleton: And just lastly, I know my friend and colleague, Senator Bramnick, you guys had a really thoughtful dialogue on the independent-contractor piece, and every member of this committee has heard from industry X or industry Y that has talked and felt they’re aggrieved, and I know there’s a connection as relates to misclassification and independent contractors because you touched on it, and as someone who helped, as one of the folks who helped author our misclassification law, understanding the gradation of that, between knowingly and willfully, and when someone makes an unknowing violation, in the course of administrative fines, it’s like $250 when it’s an unknown piece—when someone didn’t know what they should have known, right? So it’s still relatively modest.

My overall point, though, is I think for each of us, rather than all of us put in a ton of bills trying to say, “Hey, let’s exempt this person, let’s exempt that person, exempt that person,” it is probably us to go back and take a look and make sure our regulation has not created an unintended consequence for various groups. And without naming all the various groups that’s called me, there are some who make very articulate arguments.

The crux of the piece that you talked about was always about protecting workers, and you’re not going to find, I think, anyone on this dais who are going to, you know, be against that. There’s always the devil in the details and the finite ability to do that, and I think there’s probably room for us to make sure we sharpen those edges so we do not have those unintended consequences. Because that’s the feedback that all of us are getting, Democrat, Republican, from all of our constituency, that they feel they’ve been swept in to something that is well-intentioned, designed to protect workers, and feel like there’s a little nuance to each of their situations.

So I know that our Senate president articulated trying to have a little delay in that. I associate myself with that because I want us to make sure we’re doing this right. Because the bottom line is, we’re all here to protect New Jersey’s workers, and I know you take that deeply to heart.

Jarvis: Very, very much so. Very much so.

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Senator Stack: Thank you. Mr. Senate president.

Senate President Nicholas Scutari: Thank you, Mr. Chairman. Acting commissioner, thank you for all the conversations we’ve had. And I want to say, in terms of our experience with your office since you’ve taken over, has been night and day comparatively to others that may have held that position. So, yeah, I mean, literally, the feedback and the speed in which your office has responded to constituent issues has been really an outstanding job and just a tremendous difference. So I want to thank you for that.

So I’m just going to get to the point: What are we going to do about golf caddies? Are golf caddies independent contractors, or are they employees, or is it depending upon the caddie himself?

I’ve got a lot of those complaints, and then and listen, I honestly, I’ve seen it as a lawyer. How many times people have been deemed to be an independent contractor when they probably were an employee, and companies have done that, years and years, to try to get away from having to provide certain health benefits and unemployment benefits to people. So, I’m 100% on board with trying to protect our workers from that unscrupulous folks, but there are certain folks that are not employees. What about golf caddies?

Jarvis: Sure. So let me first off thank you for the for the compliment. I also want to thank the people at the Department of Labor who are the ones who are, you know, handling those constituent inquiries. They do it every single day with true empathy and concern, and recognizing that at the end of the day, every one of these numbers up here that I throw out to you, there’s a human being at the end of it, and so we realize our job is to serve people.

On the issue of the caddies, again, and as an attorney, you and I have had this conversation, right? Every case depends on the facts of that case, and the facts are going to be very different.

There may be situations where an employee in an industry, or where a worker, let me say in an industry, based on the structure of his or her employment relationship with his employer, is an employee-employee relationship. Then there may be another worker for another company in the same industry. That individual is an independent contractor, right?

And so, in the case of the caddies, you could have a situation where a golf course employs caddies directly. They work for that golf course and that golf course only, 9 to 5, or whatever the hours of the golf course are, where they would fit into the employer-employee relationship. Then there may be other times where the caddie goes to different courses, works for different people. It’s all going to depend on the structure.

And to your point, how do we classify them? There has to be a test to determine: OK what do they do? That’s the test that we have. It’s the test that we’ve had for 90 years. And I always get, you know, I always caution when we have these conversations about trying to sweep into an exemption an entire industry because as I just pointed out, there may be individuals in that industry who are legitimate independent contractors, and there may be individuals in that industry who are legitimate employees, and you don’t want to deprive those who are legitimate employees of the protections of the Unemployment Compensation Law because of some industry-wide exemption, and they happen to share the same title, even though they have a very different work structure.

So it is a very fact-sensitive determination, and that’s why we at the department, and this is the other conversation—and I have these conversations, you know, Senator Singleton mentioned that you, as legislators, hear from so many different organizations and groups and people—I do too, and I try to take every one of those meetings and every one of those phone calls and have this conversation. And what I, what I always caution is that if the Department of Labor has a case referred to us, let’s say a golf caddie were to come to the department, apply for unemployment insurance, we do our analysis and determine that he or she is an employee and was misclassified, and we issue a determination—that determination is not an industry-wide kind of edict that says, “Henceforth all golf caddies shall be.” It is a fact-specific determination for that worker and that business that applies to them in that circumstance. It, as I noted before, it may not even apply to that same employer in a subsequent case if the employer changes its business model, right? These are very fact-sensitive. We don’t issue decisions that affect entire industries. We do it on a case-by-case basis, based on the facts and the analysis.

Senator Scutari: Thank you for simplifying that, because I think you’re going to see that time and time again from different employees or workers for different industries. Yeah, certain truckers, for that matter, come to mind, and others. And so, I think I have a better idea of how we’re going to respond to these folks because I think some of them are in panic mode that they think they’re going to be having to lay off or close or be fined for, for, for certain things. And I think what you’re saying is that every case is going to be dealt with differently.

Jarvis: Correct.

Senator Scutari: And that’s not really going to help individuals that don’t know—they’re going to need to consult either your office or an attorney who specializes in the analysis of the facts as laid upon by these ABC rules that you’ve put forward. And so I think I understand that now. Certain caddies may be determined to be employees, and certain ones will be independent contractors. That’s satisfactory, and I appreciate that.

And again, I just want to say, this is one of the reasons, the chairman and I were speaking last night, and we don’t rush to judgment on commissioners. This is—you’ve been in the job for quite a while, and you’ve proven yourself to be able to lead that agency in an exemplary fashion. The experiences that the members of this committee have are not going into it with a blind, “How’s this person going to do?” We already now have the facts about how you’re going to perform as we lay them upon our rules as to whether or not you should be confirmed.

And I believe, in my estimation, that you’ve obviously passed that test with flying colors. I appreciate the work you’ve done. I wish you the best of success in your continuing part of your career. Congratulations, my vote will be yes.

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Senator Stack: Thank you, Senate president. Senator Testa.

Senator Michael Testa: First and foremost, Mr. Acting Commissioner, anytime someone that is a graduate of Vineland High School comes up before this committee, I’m already strongly leaning to a yes. I have to say that.

[Laughter]

Jarvis: Thank you, senator.

Senator Testa: Because if you if you made it through the tough but hallowed halls of Vineland High School, you’re pretty much suited for almost any job, I would think.

Senator Bramnick brought up a really good point about Uber and Lyft, because it may in fact have different applications depending on states, including our neighboring states. You know, do you think it’s incumbent on the DOL with large companies that now have independent contractors that are going to be deemed to be employees—because you said, in your own words, you think they are on notice now that those individuals that were prior independent contractors are employees—do you think it’s incumbent upon the NJDOL to, like, maybe meet with those companies to let them know? To put them on that notice, not for their general counsel to do so, or for them to get, to proactively contact the DOL to say, “Hey, are these individuals still independent contractors, or are they employees?”

Jarvis: Yeah, and I welcome those, and I have met with some of those already. I’ve met with individuals from DoorDash. I’ve met with individuals from Uber. I don’t recall whether or not I met with anyone from Lyft, but I absolutely have, my door—and I’ve, as I’ve expressed to all of you, and I’ve expressed to various industry and employment groups, I’ve gone to the BIA and the Chamber of Commerce, and I’ve met with a lot of groups. I’ve met with individual companies, and I am happy to do that. My door is open to talk to them and to talk to them about that.

And just, to just to make one point on notice, in the sense that that was the determination in the prior case—now, if in the intervening time they’ve changed their business model, there very well may be a different decision. I don’t know that they have, but we are always open to having those meetings and talking, especially in an issue like this, which I do take, and the department takes very seriously because we know it impacts businesses and therefore it impacts jobs. We take it very seriously. Very happy to meet with any group and talk with them.

Senator Testa: I appreciate that. And look, you know, I think there has been a sea change in leadership since you’ve been leading the NJDOL. I want to be clear on that, and I echo the sentiments of, do I have to call him governor now, by the way? Scutari? Because he was acting governor. I mean, I know that there’s been prior people in this state that were governor for 10 minutes, and you have to call him governor the rest of their lives, right? But I’m going to stick to Senate president.

But you know, I want to echo those sentiments. New Jersey has been deemed 50 out of 50 in the United States that are business-friendly, and my concern is that, you know, companies that are larger companies may not want to do business in the state of New Jersey because just of a climate that is unsure, right? They like consist—companies like consistency, and not things that are open to interpretation. And they don’t want to make mistakes that become costly, even though they may have been well-intentioned, they didn’t realize that they were violating something.

You know, do you think that the adoption of these ABC rules as of October 1 of this year make New Jersey more or less open for business?

Jarvis: Honestly, I think it makes it more open for business, and I’ll explain why. And I think we had may have had a little bit of this conversation at the budget hearing as well, because I remember some of this came up. And the reason I say that is because, as I’ve indicated, what the regulations do are take the factors that the courts have said are determinative for the three prongs of the ABC Test over the intervening 90 years, and listed them. Now, prior to these regulations, if a business, either an existing business or a new business, wanted to know, can I set up my business as an independent contractor, or do I have to do it as an employer-employee, if they really wanted to do the due diligence and do the analysis, they would have had to hire an attorney or a business consultant to go through that 90 years of case law, find out what the factors are that the courts consider in these prongs, and make a determination. We’ve now done that due diligence for them and written it down and put it all in one place.

So our view of it is that by placing all of those court decisions and all of those factors in regulations in one place, it’s easier and less expensive for a business to just go to those regulations and say, “Hey, what are the factors that are going to be considered?” And it’s why I answered Senator Bramick’s question the way I did. That I think that one of the best ways is to look at the regs because we did it as a means of assisting businesses so that they know: What standard am I going to be held to? That was the purpose, and so I do think it helps the business climate.

Senator Testa: Senator Scutari mentioned, you know, caddies. I think of other businesses where individuals were typically independent contractors, and that may have been the individual’s choice that they want to be an independent contractor, that they don’t want to be an employee of a company. Do you think that the newly adopted ABC rules remove some of the freedoms that 1.7 million individuals who were prior deemed independent contractors, that they want to have that freedom as independent contractors, do you think that freedom’s been removed?

Jarvis: I don’t. I don’t, and I can explain why.

So, with respect to that, one of the things that we added to the finally adopted regulations was language that expressly states nothing in these regulations will change any of the statutory exemptions that already exist for individuals, right? And we added that even though, you know, from a technically legal standpoint, it probably wasn’t necessary because regulations can’t undo what statutes do anyway, but just to add that clarity and that certainty for businesses, we wrote that in there, that nothing in here is going to remove those exemptions, and nothing in the rules changes the test or the analysis, right? And so there’s nothing in the newly adopted rules that is going to do that.

The other thing I will mention to you is that the courts have held, right, that an independent contractor agreement between a putative employer and the worker is a factor to be considered, but it won’t be the dispositive factor, right? And that is really based off of the 1938 decision of the U.S. Supreme Court, where they said, in a minimum-wage case, they said workers can’t waive away their statutory rights. They can’t contract away their statutory rights because there’s this uneven bargaining power, right? And so that’s been in our case law for almost as long as the ABC Test, right?

And so that’s why the agreement between the putative employer and the worker to work as an independent contractor is a factor that’s considered, but it’s not going to be the only factor. And the important thing about that is, in considering that factor, one of the things that’s looked at is, OK, you’ve got this independent-contractor agreement. Was this agreed, you know, to by the parties through negotiation? Was it a contract of adhesion? Was the real back and forth, real bargaining in the contract, and did they really have authority to bargain in terms of it? And that’s all going to be factored into the importance of that agreement.

Senator Testa: I really appreciate that and the fact that you wrote that into the regulations. But you know, obviously, Senator Singleton had some concerns. I share some of those concerns that we don’t want to do maybe further exemptions in piecemeal, and I’m hoping that you’d be willing to meet with some or all of us to maybe go over some potential further exemptions. It sounds like that’s what you wanted, Senator Singleton. I think I’m in the same boat as you from all the calls that we receive. Again, these are calls on both sides of the aisle. Are you willing to meet with us to talk about those?

Jarvis: I am willing to meet with the members of the Legislature anytime, anywhere to talk about these issues, I welcome it. Oddly enough, I enjoy it, even when we’re on opposite sides. I really do because I really believe that that communication is key to getting things done for the people of New Jersey. And so my phone is open, my door is open. I’ll happily meet with you guys to talk about this or any other issue whenever you want.

[Discussion of unemployment claims]

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Senator Stack. Thank you, Senator Testa. Senator Gopal, would you like me to come back to you? [Inaudible] OK, sure.

Senator Gopal: Commissioner, it’s good to see you.

Jarvis: You as well.

Senator Gopal: And thank you for being so responsive. And Emmy is a rock star, as you know, in your office.

Jarvis: I know it well.

Senator Gopal: You have a great team, and I think part of the challenge is that there’s not a lot of faith after Covid as far as just responsiveness. And it’s not unique to Labor. It’s just in government general. I can’t tell you how many people I think back to that were living in motel rooms because they didn’t, you know, press the unemployment right, and instead they pressed a button wrong, and it just felt like there was just a lot of a lack of empathy, and it was in Motor Vehicles and other places too. So, I think that is part of the concern when you hear from everybody up here on ABC. I actually have full faith that you’re going to do great and you’re going to interpret it, but the person after you, how are they going to interpret it? And I think that is a concern.

And that lack of empathy and what we’ve seen in previous years and across government is one of the biggest frustrating points. And all of us are elected, and we have to face residents and face voters, and there’s nothing worse than saying, “Well, we reached out on this, you know, DEP permit or DOT, and it’s been a year, and we haven’t been able to—and so, I really commend Governor Sherrill on putting together an extraordinary cabinet because all of you guys have been really aligned with her save-time-and-money agenda, and that has been working well. And you guys have all been, all of you, Commissioner Postonak, Commissioner Jain, everyone has been incredibly responsive. Your staffs have been incredibly responsive in handling these case files.

But looking again and just touching on this ABC Test, which I’m sure you’re going to hear three, four more times before we’re done, if somebody is legitimately an employee, and I know this happens a lot in the construction industry, that employer should be held accountable if they are trying to skirt the rules or they’re trying to save money. And as you said before, I thought obviously when an employer has a business model, they know the business model, they’re going to absorb the cost. I’m totally fine with that, and I understand that. And that person should be an employee.

But as everybody else here has said, Senator Bramnick and the Senate president, which I didn’t even think of caddies, but that’s another group, we have a big arts and theater and music in my district, and I’ve got folks reaching out to me constantly. And I’ll just tell you, just last week, I decided to schedule a meeting with my area district accountants, and they all had a different answer on this. So that lack of clarity is, I think, challenging. This is not—I’m not joking—I am meeting with a group of moms in my district because their kids are babysitters, because they don’t know if they’re an employee or an independent contractor. So I’ve got all of the theaters, Count Basie, Two River, the folks at Netflix, all of them without lack of clarity.

And now I truly believe you’re going to treat people if they, if they are an employer and they’re violating it, that you’re going to hold them accountable. I know that.

Jarvis: Absolutely.

Senator Gopal: Again, I just worry about who comes up after you, that they do the same thing, and not because, as everybody has said, there are circumstances whether it’s a graphic designer or whether it’s a freelance reporter who’s working for six different publications, those are the folks I truly hope don’t get caught on this.

So I just appreciate your continued consideration, focus and keeping that in mind that we’re all getting hammered on this constantly.

Jarvis: Understood.

Senator Gopal: Thank you, commissioner.

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Senator Stack: Senator Corrado.

Senator Kristin Corrado: Thank you, chairman. It’s nice to see you here today. I echo the sentiments of Senator Gopal and Senate President Scutari and my colleagues. We hear it every day, and there is a lack of clarity. And when you say, “Refer to the regulations,” if the accountants and attorneys can’t agree on the interpretation of the regulations, how can we expect the businesses to?

And one industry that I hear from on a regular basis is the umpires, their association, and how they’re going to handle this going forward. And they are definitely getting conflicting information. They have been told continue as normal, nothing has changed. And then, you know, we hear from umpires every day that they’re being asked to fill out the 1099.

So I think I appreciate that you’re willing to meet with businesses and to address this, but I think there’s an urgency that we have to do this now, since we did not postpone the effective date of the legislation, we have to figure it out now because it’s going to impact people, and we don’t want people being unfairly punished or put out of business because we have not been clear.

And I think the fact that there is this much concern and this much disagreement on actually what is interpreted, I don’t know how you’re going to address that. If you’re going to keep meeting with groups, we’re willing to facilitate those meetings. We’re willing to be part of those meetings, but we have to figure it out now.

Jarvis: No, understood, and I’m happy, as I said, I’m happy to meet with those groups.

In fairness, I would assume that the lack of clarity that many of them are expressing they have, and I take it at face value, I take it that it’s genuine, that same lack of clarity would have existed before the regulations because they would have had to read the case law, and their attorney for one business might have come to one conclusion, and the attorney for the other business may have come to different conclusions. So as far as the clarity, it’s our feeling that by putting those factors in one place so that everybody can see them, at least gives them the factors that are going to be considered, as opposed to well, I don’t know how much do they rely on this case versus this case and all that.

But I understand that any time there’s statutory or regulatory language—look, I’m an attorney, right? We make a living finding distinctions and doing that. We all know that. And so it’s almost impossible to write a law or a bill that is perfectly clear. You and I could read the exact same book and come away with a different interpretation, but I’m always willing, like a book club, let’s have those conversations and let’s try and allay those fears. And from my perspective, in talking to these groups, we can talk about how the department views them and what our enforcement mechanisms are.

Senator Corrado: And I know Senator Singleton brought it up first about the piecemeal legislation because there’s a number of bills in already trying to do carveouts for certain professions, and we don’t want to keep doing it piece by piece. So, if we can, you know, I appreciate the ability to work with your office so that we can make it as comprehensive and as clear going forward.

[Discussion of the pandemic and the Labor Department’s lack of responsiveness]

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Senator Stack: Senator Lagana.

Senator Joseph Lagana: Good morning, acting commissioner. Thank you for the phone call yesterday. We got to talk to a few issues, most of which came up today, so no surprise.

[Discussion of challenges during the pandemic]

Going back to the ABC Test, so just, you know, my experience, and I sat on the Labor Committee for, I think, for about eight years, and one year as the chairman before I went to Commerce, and I remember at the time when Senate President Steve Sweeney sponsored legislation dealing with this exact issue, and it went on for quite a few years. And I think I made this reference yesterday: It started out as a cake, and by the time we were done, it was a munchkin for who it would apply to. And of course, you know, the bill was pretty sweeping, but we heard consistently from every single group who it should not apply to. We should be exempt. We should be exempt. We should be exempt.

And you know, when you look, when I kind of look back and think about my conversations at the time and having sat through hours of hearings, part of the uncertainty in all this is with the adoption of the ABC Test is, you know, it’s a case-by-case basis, right? But are there certain employees or are there certain groups that this would never apply to, right?

Like, you know, real-estate agents was the first to come up at the time. You know, insurance agents, right? Are there situations—let’s just, for those two groups, as, you know, being the most out there, where they would never be classified as an employee, right? Would a real-estate agent always be an independent contractor?

Jarvis: I can’t answer always or never because it really is going to depend on the structure, right?

I can envision a structure where a real-estate company hires five real-estate agents. You work for this real-estate company, and you go out and you sell houses and commercial properties five days a week. You don’t work for anyone else. We tell you when to come in, when not to come in. All those elements of the ABC Test are there.

Then you could structure it in a completely different way, where the individual is independent, and one day maybe he or she, you know, sells a house for Weichert, and then for a different one on Tuesday. It really is going to depend on how that business is structured. And so I stay away from terms like never and always, right?

And that’s also one of the reasons that there’s always concern about these industry-wide exemptions when they get proposed, because what happens is you sweep up some people who may rightly be due unemployment insurance because their relationship really is an employee-employer relationship as opposed to independent contractors, so oftentimes they’re too broad because they sweep up everyone in the industry.

The other thing to always keep in mind is the effect it has on the unemployment system itself, right? The benefits are funded by the Unemployment Compensation Trust Fund. That trust fund gets those contributions from both employers and employees to pay the benefits, and I and my predecessors get asked during every budget committee, what tax column are we in? How’s the health of the fund, and is it getting healthy to the point, because it’s statutory, where the tax column will go down, and employers will get a tax break?

The more industry-wide exemptions that are made, the fewer industries, both employees and employers, paying into the fund. Therefore, it keeps the tax rate higher. So, it has an economic impact as well as the impact to individual employees.

Unidentified Senator (multiple sources tell me this was Senate President Scutari again): I’m just going to ask to jump in for a second, thank you Senator Lagana. But how do people know whether they are or not? Like, who’s the guru of the determining if you pass or fail the ABC Test? Are you that person? Is it your, is there somebody within your department?

Like, if somebody wants to know, because they’re calling us all the time: “Am I in? Am I not? I’m afraid.” Who do we tell them to call? You? Because you’re not going to take all these calls.

So, like, is there somebody in your department? Is there going to be a Division of ABC Clarification? Or [are] all of them going to have to go to court? All of them have to be determined based upon a determination, but how do people get to know the answer?

I know it’s case by case, so it’s going to be onerous to determine that because you need to know every fact of this particular case. Where do they go for that answer?

Jarvis: And I appreciate that, and that’s, you know, you actually make a great point. One of the reasons that the department is not in a position to give what, kind of what you’re asking about is an advisory opinion, is because it’s going to be determinative of all the facts in the case, and so you would have to have every single one of the facts.

What I can tell you is that our Office of Employer Accounts, which is housed in Income Security, which is part of Unemployment Insurance, is the one that conducts the ABC Test analysis to make a determination based on the facts that it has, and then there’s conversations with the employer. Employers are able to provide more information that may change the analysis, but they make an initial determination, issue that determination. The employer has the ability to challenge that, and then it becomes a contested case at the Office of Administrative Law, which will have a hearing. And so there is a process in place.

When you ask about my role as the, as the, you know acting commissioner now, and maybe one day the commissioner, the role would be after the contested case at the Office of Administrative Law, you know that’s a recommended decision, the commissioner of labor issues the final agency determination whether or not we agree, and then there’s the ability to appeal. And again, it’s why I go back to—

Unidentified Senator: It’s more like, if somebody just wanted advice, like we’re setting this business up, or I have a business and I want to know if I’m doing the right thing, are these people employees or are they not, is there some—where do we direct them? Because that’s kind of the questions that I’ve received, our office has received, like, “Hey, I want to know.”

Jarvis: Yeah. So look, I would tell you to direct them to me, and then I’ll talk to staff internally to make a determination if there’s someone. But look, I’ve had many of these conversations. People have grabbed me in hearing rooms and here and there to raise these issues, and I always start it, and I think many of you have heard me say it, I always start it with the caveat: It’s going to depend on all the facts. Based on what facts you’ve given me, here’s what I think you should consider, or what the issue may be.

But it is going to be difficult. We’re not in a position to give advisory opinions, but I’m, again, I’m happy to talk to anyone. Try and maybe put them in touch with people who can maybe help them flesh out some of those facts.

Senator Lagana: Just to continue more on that, you know, when we look historically at where this came from, and it goes back to 1936, obviously the world was a lot different in 1936. You know, the business climate was pure business, and employees were treated like, you know, pretty much like animals across the board at the time. So there’s a reason why, you know, the labor movement went into effect, why people organized, why they fought for things like eight-hour workdays and you’re taking kids out of factories and, you know, giving people lunch breaks and all those benefits we enjoyed today was from the labor movement, right? That’s why we have what we have today. And all these laws were put into effect to protect people.

I remember my dad’s father, my grandfather, would work, and at the end of the week they decided to pay him whatever they wanted, and he had to take it and shut up, right? Because there was nothing to enforce at the time. Now things are much different.

But you know, when we come to this point in time, we always have to consider a balance between, you know, predictability in the workforce and making sure that businesses are able to run their businesses, whether they’re big or small. And we know most businesses in New Jersey are small businesses. They’re not large businesses. So we need to create some clarity sometimes, and just make sure that what we’re doing has the effect of protecting employees, and at the same time, giving some clarity to businesses where they can comply. We don’t want people to not comply just because they don’t know how to comply, or don’t know what to do.

The case I’ve been I’ve been reading—and you know, again, historically speaking, the ABC Test was, you know, a common law test. It was enacted by, was it a congressional action? Or where did it—

Jarvis: So what happened was in the 1935 Social Security Act, which also created the Unemployment Insurance System, the individual states would then enact legislation to put that into effect in their state, and they had the flexibility on how they were going to determine who it applied to. So the initial act in 1936 that New Jersey passed in February did not contain an ABC Test, but nine months later, there were some amendments to it as they were fleshing it out, and that’s when the ABC Test became part of New Jersey law.

Senator Lagana: OK, so I’m reading a case, I’m reading Hargrove v. Sleepy’s, which is the 2015 Supreme Court case. I guess it was a Third Circuit case where people delivering for Sleepy’s argued that they were employees and not independent contractors. And just from reading the case briefly, the Third Circuit asked, posed the question to the New Jersey Supreme Court, which therein rule that we will have the ABC Test in New Jersey, right? We’re adopting it, right? But can you explain the difference between the wage and hour and unemployment, and how it’s applicable in those two circumstances?

Jarvis: Absolutely, and I appreciate the question. So, as I recall, and I’ve read Hargrove a couple of times, it involved the certification of the question as to what was the determination, how are we going to define an employee for purposes of the Wage and Hour Law and the wage payment laws?

Now, as I recall, one of those laws, I think it was the wage and hour, expressly referenced back to the ABC Test, and what the court said was, well, the Wage and Hour Law expressly states that it’ll use the ABC Test to determine. The Wage Payment Law is designed to kind of do the same thing and help, right? It’s designed to work symbiotically with the Wage and Hour Law. So the proper test there would also be the ABC Test.

As to your question about the distinction between the two, one of the important distinctions to make, and there’s been a lot of talk about exemptions: Exemptions in the Unemployment Compensation Law are not exemptions from the ABC Test. I want to make that clear. They’re exemptions from the Unemployment Compensation Law. It’s quite possible that if you applied the analysis, that exempt industry or employer wouldn’t meet the test, but they’ve been exempted from the Unemployment Compensation Law.

However, every law we have, every law governing the employer-employee relationship, has to have some definitions as to whom it applies to, right? So there has to be a definition of—just for instance, the definition of what constitutes an employee for purpose of CEPA, the whistleblower law, is a different statutory test than it is for the law against discrimination. Both of those are different than what the USDOL uses for the Fair Labor Standards Act. Different test for the National Labor Relations Act. Different test for the IRS in determining a 1099 employee, right? So this kind of different test is something that’s always an issue.

With respect to the UCL, the Unemployment Compensation Law, and the Wage and Hour Law and the Wage Payment Law, what they’ve determined was, well, for purposes of these laws, we’re going to rely on this same test, right? I’ve heard conversations, and I’ve been involved in conversations where industries have come and said, “Well, we’re exempt from the Unemployment Compensation Law, so we should be exempt from the Wage and Hour or the Wage Payment Law. But I would submit to you that suggesting that just because you’re exempted from the Unemployment Compensation Law means you should be exempted from the Wage and Hour Law doesn’t really make any more sense than saying, OK some employees are exempted from overtime under the Wage and Hour Law, right? If you look at our Wage and Hour Law, there are employees who are exempt because they’re deemed managerial or supervisory, right? They’re salaried employees. Well, they’re still employees. You wouldn’t apply that exemption to them under the Unemployment Compensation law. So, if a manager who’s exempt from overtime, let’s say he manages a warehouse and he’s exempt from overtime, gets fired, you’re not going to suddenly exempt him from the Unemployment Compensation Law.

And so, the fact that they used the same test was determined by an act of the Legislature and how they worded the Wage and Hour Law statutorily, and then the court’s interpretation of connecting that to the Wage Payment Law, I don’t know if that’s a little too esoteric—

Senator Lagana: No, no, no, I think it’s just completely esoteric, but that’s just how it’s built, right? Because, you know, you may be considered an employee that’s eligible to receive, like, as you said, a manager that doesn’t get overtime or somebody who does get overtime. But at the same time, if you were let go, then you do get unemployment, right? So you would be exempt in one instance, but you wouldn’t, but the business wouldn’t be exempt in the other instance.

Jarvis: Correct.

Senator Lagana: So you know, I think that’s where a lot of the—because this is extremely nuanced, right? I mean, it’s, you know, even if you’re an attorney, you don’t practice in this area, you still don’t really, you know, have much experience with it. So it is, and I just want everybody to realize it’s incredibly nuanced. And I think that, you know, what we’re trying to do here is just create as much clarity as we can.

I think a lot of the, because my conversations with the former commissioner were because I was I was a chair of the committee when a lot of this was being discussed, and I had some deep conversations with him about this issue. A lot of it was over whether or not the Legislature itself should act to enshrine this into law, right? That it was seen as a little bit of an overstep, even though it’s permitted, of course, but seen as an overstep for the department just to codify something so massive and not go through the process that we have to have hearings and to have people come testify.

And whether or not, and I know Senator Singleton mentioned something about working on legislation. I know there is legislation, and we try not to piecemeal stuff. Piecemealing things is not the way to do this. And I know the senator has been, has had his eye on this, and I look forward to working with him if he, you know, if he wishes to pursue this.

But I think, you know, if we do get to a point where the Legislature feels like it should act itself to codify into statute and not be just subject to regulation, one way or another, but I think we’re all on the same page as far as this being applicable. And I agree with you. You know, it is a pure codification of the test, and you know, no more, no less. And I think a lot of it is, you know, a little bit of sticker shock where people are like, well, wait a minute, doesn’t apply. You know, what existed yesterday exists today. It’s the same thing. But in there, any circumstances where people may have the ability to change things and enshrine them, they would want to.

So I think that’s why you’re seeing certain groups want, you know, they want it up in neon that they’re not employees, right? But I do appreciate the fact that it is a case-by-case basis, and unfortunately, that’s just how it is, right? What do we say all the time? It is what it is, right?

So I think that, you know, unless there’s some other better method that we would be examining these types of matters where there are, where we can agree that there are wholesale groups that will just never be independent contractors, I think sometimes it can be hard, like you stated, but you know, it’s something that I think we have to tackle—the department and the Legislature and the governor’s office—together to try to figure out what’s best for our employees and at the same time, you know, give clarity to businesses.

I mean, you know, I have family members that have small businesses. You know, they ask me these questions and I sometimes don’t know how to answer them. And I think that all they’re looking for is, we just want to make sure if we have to do it this way, that’s how we do it.

We don’t want to get in trouble because what happens later on was, you know, the heavy hand of government comes down, and then, you know, it’s a little bit difficult to put the toothpaste back in the tube afterwards. And sometimes you have employees, you know, you have all kinds of businesses, all kinds of employees. You have some people who are just incredibly disgruntled, you know, who were treated well by their employer, and then all of a sudden they see this hammer that they can hit them over the head with, and they take advantage of it.

So you know, we just want to be fair in this marketplace, but understanding that these laws went into effect because businesses were not treating employees well, right? Always having to keep that in mind.

So thank you for your testimony today, and you know you have my full support. I look forward to working with you.

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Senator Stack: Thank you. Senator Bucco.

Senate Republican Leader Anthony Bucco: Thank you, Mr. Chairman. I promise, I’m going to be brief. Welcome back to the commissioner. You and I have had a number of conversations during your tenure. I appreciate your leadership in the department. I think the change has been very recognizable, night and day, compared to what we were used to under the prior commissioner.

I just have just two brief questions. The first is, I think we beat up ABC to death today, but it goes to the point of the uncertainty. You know, the request for clarification, the added cost to businesses. My question is, I know that the Senate president sent a letter to the administration. I know many of my colleagues on both sides of the aisle had sent in requests to delay the implementation of the regulations. Why didn’t we do that?

Jarvis: So thank you for the question, senator. The reason we didn’t do it is, again, and I keep going back to this, is that the regulations were not doing anything different than simply stating what the case law already is. Much of that case law, I mean, in doing that, there are cases that go all the way back to 1940 and ’50s, ’60s, ’70s. That was the law. This wasn’t a change in the law. It wasn’t an expansion of law. It wasn’t a contraction. It was literally listing it. So delaying it wouldn’t have changed anything, right, in the sense that these were still the factors that the department and the courts were going to consider when making a determination, and because those were still the factors.

And you know, it was even recognized there was a federal district court case in New Jersey in May of 2026, shortly after the regulations were adopted, although they hadn’t gone into effect yet, where the federal district court judge, in a footnote, noted the new regulations, and the judge herself noted that the regulations only synthesize existing case law, right? And so it’s not even just coming from myself at the Department of Labor or different advocacy groups, but the federal courts are recognizing that it’s just a synthesis of existing law. So delaying it wouldn’t have done anything besides holding off on having these things for businesses to use.

Senator Bucco: I mean, it might be just that now seeing it on paper rather than it being out there in a hundred different places has now put this question into everybody’s mind that started this ball rolling, right? Because now there’s a focal point.

Before, it existed in cases all over, and I know that there’s legislation that’s been proposed to exempt certain categories. I hope that we don’t pick winners and losers, that we don’t just, you know, do this by the adoption of legislation. I hope that as these questions get developed, we come to some understanding to help give these businesses some comfort in knowing that they’re not violating the law.

So, I just say that, because I do think that it’s an issue. I do think it’s adding costs to businesses unnecessarily, and we all know that that’s not the place we want to be here in New Jersey because we already have the worst business tax climate in the country, so I just think we need to think about that.

[Discussion about the pandemic and the Labor Department’s lack of responsiveness]

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Senator Stack: Senator Burgess.

Senator Renee Burgess: Good morning. How are you?

Jarvis: I’m good.

Senator Burgess: I must say, you answered a lot of questions today, and you’ve done a great job. Your demeanor, your intellect and your knowledge—it speaks volumes, and it just says why I’m not on the fence anymore. You know, I just want you to know you have my support. I appreciate what you’ve done. A lot of my colleagues have already touched on a lot of important subjects that I did have concerns about. Most importantly, you know how your office take care of our constituents, and I thank you for that. And I know you’re going to do a great job. And thanks for being here.

Jarvis: Thank you for the kind words, senator. I appreciate it.

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Senator Stack: Senator Bramnick.

[Discussion of how to contact the Department of Labor]

Senator Bramnick: Down in Washington, they have this “big, beautiful bill.” I don’t think it’s beautiful. I’m not a supporter. But what I would say to my colleagues is we should start to draft a “big, beautiful bill” of all the exceptions of the industries in this state that shouldn’t be independent contractors, just in case you’re not around, or somebody’s not reasonable, or they decide to go after industries that, you know, it’s questionable. So I think we should begin to draft that bill and have that bill in our side pocket or back pocket, just in case this thing goes haywire.

But on the other hand, you are articulate, you’re very experienced, and we’re going to hope that, you know, your decision-making is based on common sense and reality.

Charles Wowkanech, president of the New Jersey AFL-CIO, then testified in support of the nomination, which the New Jersey AFL-CIO also issued a press release about. At the witness table, Wowkanech described meeting Jarvis three decades ago, Jarvis at one time working for the New Jersey AFL-CIO, and Jarvis being “a dear friend.”

Members of the Senate Judiciary Committee then voted unanimously in favor of advancing the nomination of Jarvis to serve as New Jersey labor commissioner.

[Applause]

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In his capacity as acting labor commissioner, Jarvis already adopted the state’s ABC Test rule for independent contractors, which faced 99% public opposition as well as public statements of concern from two dozen lawmakers on both sides of the political aisle.

Jarvis has also defended the adopted rule in the press, claiming that this widespread concern and opposition is rooted in “a river of misinformation.”

There are a number of topics that I’m sure the senators will be asking Jarvis about today. Here are five questions I’d like to see them ask about the independent-contractor policy situation, in particular.

Question 1

The independent-contractor rule that you just adopted faced 99% public opposition in the estimated 9,500 written public comments filed with New Jersey’s Labor Department. Only about two dozen comments were filed in support, and most of them were from unions or organizations with strong union ties, such as the multimillion-dollar Economic Policy Institute in Washington, D.C., whose chairwoman is Liz Shuler, the head of the AFL-CIO.

You told the publication Law360 that you only considered about 250 of the opposition comments to be “unique” because a lot of people signed form letters and sent them in. You also told Law360 that a single comment in support of the rule should count as representing “thousands or upward to a million” people. You repeated this claim in your testimony before the Senate Labor Committee in May.

The way you weighted these public comments not only seems to minimize the concerns of thousands of New Jerseyans who earn some or all of their income as independent contractors, but also appears to discount organizations such as the New Jersey Bar Association, whose opposition comment represented more than 16,000 members; the roadside assistance network AAA, whose opposition comment cited more than 885,000 drivers from New Jersey calling to use the service in a single year; and the childhood development experts who submitted an opposition comment about effects on New Jersey’s Early Intervention System, which serves roughly 15,000 infants and toddlers with developmental disabilities and delays.

Why do you believe a single comment from a union leader should count as many as a million times, while thousands other comments that in some cases represent tens or hundreds of thousands of New Jerseyans should be characterized as only “about 250 unique letters”?

Question 2

You previously worked as the legislative affairs coordinator for the New Jersey AFL-CIO. And you made clear, in your comments to Law360, that you weighted supportive written public comments from organizations such as the New Jersey AFL-CIO differently than you weighted opposition comments from non-union organizations.

That alone raises concerns about whether you, as labor commissioner, would be working for the people of this state or for the union organizers. Especially since, according to the U.S. Bureau of Labor Statistics, less than 15% of New Jersey’s wage and salary workers are union members.

So please tell us: During the eight months since you became acting labor commissioner in February, how many times have you met with union officials; how many times have you met with independent contractors; and how many times have you met with organizations such as the New Jersey Chamber of Commerce and the New Jersey Business & Industry Association?

Question 3

In May, you testified before the Senate Labor Committee that in the past seven years, more than 4,700 gig workers applied to the Labor Department for unemployment insurance benefits. You also testified that in the past two years, more than 1,400 gig workers applied. “Those are big numbers,” you said in your testimony.

But anyone who does the math can see that those numbers only amount to about 700 people on average each year—in a state with an estimated 1.7 million people earning some or all of their income as independent contractors. What you called “big numbers” actually represents less than 1% of independent contractors in New Jersey.

And according to information that the Labor Department, under your supervision, provided to Senator Declan O’Scanlon, only a single type of independent contractor, rideshare drivers, filed almost all of those recent claims.

Economists have documented that not just rideshare, but all types of app-based workers combined—that’s Uber, Lyft, DoorDash, Instacart, TaskRabbit, all of them—comprise less than 10% of independent contractors.

Why do you believe that less than 1% of people involved in a type of work that involves less than 10% of independent contractors justifies rulemaking that—as one attorney described it—is based on “one of the most business-unfriendly tests for independent-contractor status in the country and interprets that test in a particularly unhelpful manner”?

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Question 4

Page 183 of the adopted independent-contractor rule states that the Labor Department—which you are now seeking confirmation to lead—“is not obligated to address economic research on the impact of the ABC test.”

This statement seems like a complete abdication of the Labor Department’s own mission statement, which claims that the department “is dedicated to protecting our workforce, strengthening our businesses, and promoting the dignity of work.”

Economists submitted research on the impact of the ABC Test here in New Jersey as part of the public-comment process. They found that use of the ABC Test in our state has already led to harmful effects compared to states that do things differently:

• a 3.81% decrease in W-2 employment

• a 10.08% decrease in self-employment

• a 3.95% decrease in overall employment

This research by economists also noted that “the New Jersey data reveals stark gender disparities: women’s traditional W-2 employment declined by 7.40%, while men’s showed no significant change—raising concerns about disproportionate impacts on women following the policy change. This pattern suggests the policy may inadvertently create gender-specific barriers in the labor market while failing to deliver its promised worker protections.”

Notably, those findings about the ABC Test causing disproportionate harm to women in New Jersey mirror what members of the California Advisory Committee to the U.S. Commission on Civil Rights reported about similar use of the ABC Test in that state.

If the New Jersey Labor Department’s mission is to protect our workforce, strengthen our businesses and promote the dignity of work, then how is it reasonable to ignore economic research showing that use of the ABC Test is decreasing W-2 employment, self-employment and overall employment, with disproportionate harm to women?

Question 5

Prior to this rule taking effect October 1, numerous bills were introduced to exempt financial advisers, insurance agents, golf caddies and amateur sports officials—with testimony before the Legislature that the adopted rule continues to threaten their livelihoods. In addition, after this rule took effect October 1, another bill was introduced that would protect at least 40 more professions ranging from writers and editors to photographers and dancers.

Several of these bills are sponsored by Senate Labor Committee Chairman Gordon Johnson. He is just one among numerous high-ranking members of this body, including Senate President Nicholas Scutari and Senate Republican Leader Anthony Bucco, who asked for this rule’s effective date to be delayed until July 2027, to give the Legislature time to work on independent-contractor legislation.

There also has been a request from the New Jersey Chamber of Commerce and the New Jersey Business & Industry Association to create “a balanced task force representing workers, organized labor, independent contractors, employers, nonprofits, and other affected stakeholders,” as part of an effort to “develop a framework that targets genuine misclassification without jeopardizing legitimate independent work.”

And, since May, the New Jersey Senate has had in the public record a 98-page report that details, at great length, the mischaracterized data and research about independent contractors in the findings by Governor Phil Murphy’s Task Force on Employee Misclassification—findings that this Legislature was repeatedly led to believe were true.

Page 192 of the adopted independent-contractor rule states that “critique of the work of 2019 Misclassification Task Force Report is not relevant to this rulemaking.”

The Labor Department’s stance about ignoring mischaracterized data and research seems just as unreasonable as the Labor Department’s stance that there is no obligation to address economic research on the impact of the ABC Test.

If you are confirmed as labor commissioner, would you pledge to delay all enforcement based on this rulemaking, and to support the creation of a balanced task force with a target date of July 2027 for the Legislature to consider all of this and more, and to develop a framework that targets genuine misclassification without jeopardizing legitimate independent work?

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Of particular importance to this show’s audience is New Jersey Senate Bill 4709, which would bring what’s known as “sectoral bargaining” to the state for the entire rideshare industry.

Host Steve Johnson and I talk about how this scheme should really be called “no-vote unionism” because the way it would work, 70% of rideshare drivers statewide could fall under union representation without getting a vote—or without even know a vote is happening.

New Jersey’s legislation is an attempt to follow in the footsteps of Massachusetts and California, where attorneys say this kind of scheme raises questions under the First Amendment, the Due Process Clause, the Sherman Antitrust Act and the National Labor Relations Act.

As a fun bonus, if you watch all the way to the end, you’ll get to see my 8-month-old puppy, Molly, try to pull my jacket right off my body and then create some mayhem with a squeaky toy.

Enjoy!

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Her acting Labor Commissioner, Kevin Jarvis, said much the same thing a few weeks ago to the New Jersey Monitor, while adding that he was “swimming upstream against a river of misinformation” coming from anyone who was saying otherwise. “This is not a new test. This is not a change in enforcement,” Jarvis said.

Well, if that’s all true, then there would be zero need for the bill that New Jersey Senate Labor Committee Chairman Gordon Johnson just introduced.

Senate Bill 4715 is yet another carveout bill, and it’s notable because it’s being introduced after New Jersey’s ABC Test rule took effect October 1. Previous carveout bills were introduced for a single profession, such as golf caddies or amateur sports officials, or for just a handful of professions, such as financial advisers and insurance agents. None of those earlier carveout bills became law prior to the ABC Test rule taking effect October 1, as the New Jersey AFL-CIO ran a campaign telling lawmakers there shouldn’t be any new carveouts from the ABC Test.

Well, take a good, long gander at all the professions that the newly introduced Senate Bill 4715 would protect from New Jersey’s deeply misguided ABC Test rule.

I count about four dozen in this passage below, which the passage itself says may include other professions, too:

If the ABC Test rule that took effect October 1 didn’t change anything—as Governor Sherrill and acting Labor Commissioner Jarvis insisted—then why does Chairman Johnson of the Senate Labor Committee believe that people who work in all these professions suddenly need a law enacted so they can keep their status as independent contractors?

Think About That List

While you’re mulling the big-picture question of why this bill even exists if there’s no problem with the ABC Test rule, take another look at that list of professions that would be saved. Does it make sense to you?

For starters, Senate Bill 4715 would protect the independent-contractor status of people who are “translators of creative work.”

That would mean the State of New Jersey may protect people who translate, say, a play from a foreign language, but not the independent-contractor status of the translators and interpreters who filed a public comment about how they provide language and communications access that’s required under multiple laws, including the Voting Rights Act, the Patient Protection Act and the Americans with Disabilities Act.

Does that seem even remotely logical?

The language in Senate Bill 4715 also says this carveout legislation would protect “filmmakers,” “media artists” and “digital artists.”

Does that only include people who are making fictional movies? Or does it also include all the video editors who are working on nonfiction reels that everyone watches on YouTube and news-media sites?

Sure feels a lot like the exemption lunacy in California, where “fine artists” were exempted, but nobody bothered to define what “fine artist” meant.

And what is a “folklife practitioner” as listed in New Jersey Senate Bill 4715?

An online search tells me the U.S. Bureau of Labor Statistics doesn’t consider that to be a profession at all, though the term apparently may describe some anthropologists and archaeologists, and perhaps also some historians and museum workers.

There’s also the bit in New Jersey Senate Bill 4715 about how this carveout legislation would apply to “writers, poets, literary artists, translators of creative work, editors of creative work, and other creators of original expressive material.”

Does that include freelancers like me, or not? Does it describe articles I’ve written like this award-winning Sunday front-page investigation for The Washington Post that exposed millions of dollars flowing from dog-rescue organizations into the pockets of the kinds of breeders routinely called “puppy mills”? Or do writers only get to keep our clients and income as independent contractors in New Jersey if we’re writing things like the script for a TV comedy series about fictional characters who really love their cats?

I am reminded of this bit from a lawsuit filed against the State of California over its ABC Test law and exemptions:

“There is no rhyme or reason to these nonsensical exemptions, and some are so ill-defined or entirely undefined that it is impossible to discern what they include or exclude. For example, some types of workers are excluded (e.g., a delivery truck driver delivering milk) while others performing substantively identical work are not excluded (e.g., a delivery truck driver delivering juice).”

The inherent insanity in all of the above questions is the root of the problem with the overly restrictive ABC Test, and with the attempt to protect legitimate independent contractors from it on a profession-by-profession basis. When you need this many carveouts, and when even the carveouts themselves don’t make any sense, you’re dealing with a bad regulatory test that shouldn’t be used to determine independent-contractor status at all.

In California, the grassroots advocate Karen Anderson and her 18,000-member Facebook group ultimately compiled a list of more than 600 affected professions after that state passed its ABC Test law. U.S. Congressman Kevin Kiley’s team reviewed that list, and he then read it into the public record on the floor of the U.S. House of Representatives, trying to warn the rest of the country about what was happening to independent contractors on the West Coast.

Even speed-reading the list, the effort took Congressman Kiley a 10 full minutes:

What’s more, a report from members of the California Advisory Committee to the U.S. Commission on Civil Rights—who received hours upon hours of testimony from witnesses about what actually happened after the ABC Test law went into effect in California—explicitly warned other states not to follow this ABC Test and carveout path that New Jersey now finds itself on.

They wrote:

And given how many of the professions in New Jersey Senate Bill 4715 are related to the performing arts, let’s also recall what that report from members of the civil-rights advisory committee described about the impact of the ABC Test law on the performing arts in California:

“AB5 also appears to have had a detrimental impact on small performing arts organizations, community theater venues, the non-profit arts and the performing arts. In Los Angeles, the concert dance scene, comprised of small and culturally diverse dance companies mostly run by women and minorities, struggles to comply with the law, as reported by Judith Flex Hella via written testimony. The impact appears to have been similar on independent filmmakers like Margarita Reyes, whose written testimony reveals how she now struggles to provide youth mentoring programs to minorities in the independent filmmaking sector due to AB5. We also received written testimony from Gail Gordon, founder of Muni Opera in Los Angeles, a small nonprofit opera company she founded in honor of her mother, a holocaust survivor. Her company presented music by Jewish composers suppressed by the Nazis. She is no longer able to carry on with her opera because the cost of putting on a single production has increased by almost 70 percent due to AB5’s requirement that independent contractors are banned from being hired for musical theater production and must be converted into employees even if the work is for an hour a day.”

That report from California is dated December 2024. It’s about a law that went into effect in January 2020.

It has been well known, for years now, that using the ABC Test the way the State of New Jersey is now attempting to use it destroys all kinds of innocent, hardworking people’s incomes and careers.

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And Where, Exactly, Does It Say Independent Contractor?

New Jersey Senate Bill 4715 also includes this passage:

For years now, we have all said that independent-contractor policy needs to be crafted in a way that gives real independent contractors a meaningful seat at the table.

The above passage in Senate Bill 4715 makes no such guarantee. Based on the language in the bill, the state’s Labor Department could consult only with unionized or unionizable employees who fit the description of “individual artists” and “teaching artists,” and once again create standards that have nothing to do with the real-world lives of independent contractors in all kinds of professions.

Think it won’t go down that way?

Please name for me a single independent contractor who was a member of Governor Murphy’s Task Force on Employee Misclassification.

That task force’s report (if you can even call it a real report, given all the data and research it mischaracterized) has led to the enactment of 10 laws, the creation of a new government agency office, and the granting of what the New Jersey Labor Department calls “first-of-its-kind” penalty power, not to mention being cited in the Labor Department’s own press release about this ABC Test rulemaking that 99% of the public opposed.

The long and the short of it remains the same as we’ve all been saying since we started jamming public hearings and testifying back in 2019, when New Jersey’s Senate President tried to copy California’s career-destroying ABC Test legislation and then wrote an op-ed comparing us to Russian disinformation agents for exposing what he was doing—which was exactly what we said he was doing, as New Jersey’s government itself recently, at long last, acknowledged.

Truth is truth: Today’s ABC Test is no longer regulatory language being used to target actual cases of employee misclassification. Today’s ABC Test has been finagled and rewritten and reinterpreted so that it threatens the livelihoods of legitimate independent contractors across hundreds of professions.

New Jersey Senate Bill 4715 is merely the latest evidence that all of us have been correct about all of this, right from the start. And this bill falls woefully short of actually solving the problem we all now face.

My home state’s Legislature should protect all of New Jersey’s estimated 1.7 million independent contractors from this madness by invalidating the Labor Department’s ABC Test rule—which the Legislature has the power to do right now, on its own. Concurrent resolutions SCR62 in the Senate and ACR75 in the Assembly have been sitting at the State House in Trenton ready to go since January.

After invalidating the Labor Department’s ABC Test rule, our Legislature should then create the kind of task force that the business community has been requesting. We need a real task force with serious independent contractors as members, to design reasonable, rational policy that will let regulators stop the bad actors who do misclassify their employees, and that will let everyone else in our state work in whatever way works best for us.

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Here is a PDF of the report for anyone who wishes to download it. I uploaded this PDF on October 19:

Future of Work Report

491KB ∙ PDF file

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October 1, 2026, just may go down in history as the day that Big Labor smashed independent contractors the hardest in any 24-hour period, anywhere in the country.

Two things happened on that same day last week in my home state of New Jersey. The first thing, which was extreme, got a lot of press attention. The second thing, which went beyond extreme to outright radical, appears to have escaped the media’s gaze altogether.

First, Governor Mikie Sherrill’s Labor Department went ahead and implemented its own interpretation of ABC Test regulatory language for independent contractors. There was plenty of news coverage about how in doing so, Sherrill’s administration ignored 99% public opposition, thumbed its nose at bipartisan lawmakers including the Senate President, sided with extremists who compared the business practice of independent contracting to child labor and human trafficking, blew off the concerns of the state’s two biggest business organizations, and codified what attorneys say is now “one of the most business-unfriendly tests for IC status in the country [that] interprets that test in a particularly unhelpful manner.”

Second, that same day—with zero media coverage that I can find—state Senator Gordon Johnson, the Democrat who chairs the New Jersey Senate Labor Committee, introduced Senate Bill 4709. This legislation would create what’s known as sectoral bargaining in the State of New Jersey, allowing union representation of every worker in an entire industry, all at once.

Sectoral bargaining is a practice that even some of the nation’s most prominent unionists—co-chairs of the Congressional Labor Caucus, including U.S. Representative Donald Norcross of New Jersey—call “radically different” from the way unionization has historically been done in the United States of America.

The introduction of Senate Bill 4709 moves the State of New Jersey from a status of extreme to radical in its efforts to change laws and regulations in ways that give Big Labor unfair and unprecedented leverage over everyday people.

Big Labor’s ‘Pilot Program’

I’ve been writing about sectoral bargaining since summer 2024. That’s when it became clear that after trying to use weaponized ABC Test regulatory language to reclassify huge swaths of independent contractors as unionizable employees, the unions next would be trying to bring the concept of sectoral bargaining to the United States of America.

Sectoral bargaining is different from the kind of unionization that we’ve all known for our entire lives. In America, unions have been legally required to organize only a single company at a time. For example, they can’t unionize the whole auto industry at once; they first have to get employees at a Ford plant to unionize, then go to a Chevrolet plant, let the employees at that location vote on whether to unionize, and so forth.

In legal lingo, this means unions have to focus organizing efforts on a single enterprise at a time. Everybody at each enterprise gets a vote on whether to join the union, and the union needs a majority of the votes to succeed. This is what we’ve long had in the United States, known as enterprise bargaining.

With sectoral bargaining, the workplace-by-workplace limitation is removed.

So is the requirement that every worker gets a vote.

As is the need for the union to get a majority of votes to become everyone’s representative.

With sectoral bargaining, all of those guardrails against forced union representation are gone.

Some powerful elected officials support this way of shifting our nation’s unionization methods. In 2018, a report that Congressman Norcross co-wrote described how unionists could start to impose this sectoral bargaining idea on the American workforce by focusing on a single industry. Norcross and his co-authors described doing so as creating a “pilot program” that could get the legal concept of sectoral bargaining into law:

New Jersey Senate Bill 4709 is now intended to advance this radical pilot program, which the unionists have been working on in other states, as well.

In Massachusetts, they got the sectoral-bargaining concept into law for the rideshare industry with just 54% of the public’s vote in a ballot measure in November 2024.

Then in May 2026, the State of Massachusetts certified its first union—affecting about 70,000 rideshare drivers—without most of those drivers even voting on union representation. What the union was required to do, as a top attorney explained it here, was get signatures from 5% of all “active” drivers in the state, a threshold that then gave the union access to contact information for all the rest of the drivers in Massachusetts. The union could then collect signatures from just 25% of those active drivers and be automatically certified as the bargaining representative of every driver in Massachusetts.

Put another way, the majority of rideshare drivers in Massachusetts are now under union representation that they never voted for in the first place.

While that’s all been happening in Massachusetts, Governor Gavin Newsom signed a sectoral-bargaining law in California in October 2025, letting unionists target the rideshare industry there too. In September 2026, that union was certified, with support from just 30% of rideshare drivers in the state.

Minnesota lawmakers also introduced a similar bill in 2025, but it hasn’t become law in that state yet.

So, now comes New Jersey’s Senate Bill 4709, attempting to create a third state with a sectoral bargaining law that targets the rideshare industry and advances the unionists’ pilot program that’s intended, in the long run, to impose this kind of sectoral-bargaining scheme across all kinds of industries.

The New Jersey bill would allow a union to move forward with just 10% of active rideshare drivers agreeing to proceed with the effort:

Once that 10% threshold is reached among active rideshare drivers in New Jersey, each rideshare company would have to provide all active drivers’ contact information so the union could target them:

And after that, if the union can get 30% of active drivers to say yes, then the union would represent 100% of rideshare drivers in the State of New Jersey:

Again, for all practical purposes, this would mean the very concept of majority rule goes out the window with regard to union representation.

As we’ve seen in the other states that are part of this radical pilot program, most rideshare drivers in New Jersey could fall under union representation without ever voting for it at all.

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‘We Will Write New Rules’

As I noted in December 2025, there was a flashing-red signal that New Jersey would be on Big Labor’s menu for sectoral bargaining next.

Out in California, there were actually two bills that Governor Gavin Newsom signed to give union organizers access to rideshare drivers through sectoral bargaining. As Politico reported in October 2025, these two bills were a package deal that the SEIU worked out with Uber and Lyft. Unionists got sectoral bargaining for rideshare drivers in the first bill, and then, in a second bill, Uber and Lyft got something they wanted: a way to “drastically reduce insurance coverage requirements for the ride-hailing companies.”

Politico wrote about that second bill:

“The second bill Newsom approved, SB 371 from state Sen. Christopher Cabaldon, slashes the amount of insurance coverage Uber and Lyft must carry for crashes caused by underinsured drivers from $1 million to $300,000 per incident.”

That language about underinsured drivers is why I noticed in late 2025 that New Jersey lawmakers had introduced Senate Bill 4898 and its identical companion bill, Assembly Bill 6147, here in my home state. Those bills are described like this: “Lowers minimum amount of uninsured and underinsured motorist coverage for transportation network companies and transportation network company drivers.” And both bills have since been reintroduced, in the Senate and the Assembly, for New Jersey’s current legislative session.

In other words, half of the legislative deal that led Uber and Lyft to stand down against a sectoral bargaining bill in California has been sitting ready to move in New Jersey for the better part of a year now.

And lest anyone think this “pilot program” with sectoral bargaining will stop with the rideshare industry, read how the SEIU described its plans for sectoral bargaining in April 2024:

“When we say Unions for All, that’s just what we mean.”

Friends, when people show you who they are, believe them.

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What You’ll See Next in the Media

Don’t expect to see any of the context that I provided above if, or when, New Jersey’s press corps reports on this sectoral-bargaining legislation.

Instead, based on what we’ve seen in Massachusetts and California, what’s most likely to happen next in my home state is the media making it seem as if rideshare drivers—not politically powerful union organizers—are the ones notching a win with this radical sectoral bargaining concept.

The headlines don’t ever say “Big Win for Big Labor.” Instead, they say things like the following:

No matter what the stories in the media say, remember that sectoral bargaining is not a worker-up initiative to unionize. We live in a nation where only 8% of independent contractors say they’d prefer a traditional job, and where most non-union employees do not wish to join a union at all.

What’s happening in New Jersey’s government right now bears no relationship to what the people of this state keep making clear that we want, even when we do so by an undeniable margin of 99%, as we just did with our opposition to the ABC Test rulemaking that Big Labor backed.

Sectoral bargaining, just like weaponization of the ABC Test against independent contractors, is union bosses using political power to change our laws and regulations in extreme and radical ways, so they can achieve what they want.

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The show’s host, Eric Landskroner, began by reading from a letter that the New Jersey Chamber of Commerce, in tandem with the New Jersey Business & Industry Association, sent to Governor Sherrill a few days ago.

The portion of the letter that Landskroner quoted from states:

“Legitimate independent contractors can demonstrate nearly every traditional indicator of independence—they can operate their own businesses, serve multiple clients, maintain insurance, provide their own equipment, negotiate their own rates, and assume their own business expenses—and still fail the test because the service they were contracted to perform is deemed essential or integral to the contracting entity’s business.”

Landskroner then added to that question by reading from part of a related question that I sent in for the “Ask the Governor” show last night:

“The ABC Test [rule] faced 99% opposition in thousands of written comments, overwhelming opposition at several standing-room-only public hearings, and even Senate President Nicholas Scutari has asked you to delay this rule until July 2027. Will you grant that delay?”

Governor Sherrill responded that all her Labor Department is doing is codifying rules and regulations that are already in place.

I honestly couldn’t believe it when she said it.

Incredibly, the line that Governor Sherrill used is the same one that Governor Phil Murphy’s Labor Department used when it proposed this deeply misguided ABC Test rulemaking last year, saying it was merely codifying what already exists.

At that time, the NJBIA was also among those who pointed out how the claim was not true:

“These regulations do not merely ‘codify’ existing law as the Department claims—they significantly alter it,” said NJBIA Vice President of Government Affairs Elissa Frank.

After the Murphy administration saw massive pushback to that version of the ABC Test rule—including from attorneys who said it almost entirely eviscerated the ability to be an independent contractor, and posed an existential threat to independent work itself—the Sherrill administration altered the rule’s text prior to adopting a final version of it.

And in doing so, her own administration made it awfully hard to believe that what Governor Sherrill said last night is true.

Her Labor Department’s adopted ABC Test rule, which she said is merely codifying what’s already in place, is different from the Murphy Labor Department’s proposed ABC Test rule. The two versions of the rule can’t both be codifying what’s already in place when the versions are not even the same.

But wait. There’s more.

They’re not even the first ones to make this same claim in Trenton.

Steve Sweeney Said the Same Thing Too

When Governor Sherrill said she’s only codifying regulations that are already in place, she was repeating the same talking point from 2019 that her own administration just debunked.

Back in 2019, when then-Senate President Steve Sweeney sponsored ABC Test legislation here in New Jersey, independent contractors packed the State House to testify en masse against it. We said at the time that Sweeney’s bill was trying to copy California’s ABC Test law, which we rightfully said showed every early sign of creating what economists later confirmed were catastrophic results.

Sweeney insisted that we were all wrong, and that the only thing he was doing was codifying existing New Jersey regulations.

InsiderNJ quoted Sweeney back then:

“These bills will simply codify into law existing regulations so that future administrations can’t ignore, change or discard the protections already in place to protect workers against the loss of basic rights by being misclassified.”

Here we are seven years later, and Governor Sherrill’s own administration just clearly stated in writing that in 2019, Sweeney’s bill was indeed trying to copy California’s ABC Test law.

You can read what Sherrill’s team wrote for yourself. Her newly adopted independent-contractor rule states, on pages 90 and 91:

“As to the 2019 New Jersey bill (S4204), as introduced, it would have altered New Jersey’s statutory ABC test in ways that made it virtually identical to the ABC test in California AB5.”

So, with Governor Sherrill’s appearance on TV last night, this is now the third time we’re being asked to believe that the State of New Jersey is merely codifying what already exists with the ABC Test—while the state has in fact now tried to codify three different things.

This is like listening to Abbott and Costello perform a rendition of “Who’s on First,” all while lawyers keep saying the state is changing how the ABC Test is being interpreted and applied, in ways that continue to create concerns at their core.

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But They Say We’re The Ones Who Are Confused

And what’s more, the people pushing this ABC Test policy path also keep telling us that the actual problem is all of us being confused.

Back in 2019, as part of what turned out to be a masterclass on sowing public confusion, Senator Sweeney wrote an op-ed not only saying there was a lot of “misinformation” about his ABC Test bill, but also comparing my fellow freelancers and me to “Russian operatives trying to interfere in our elections.” Because we refused to back down from what everyone now agrees was the truth all along.

The same word that Sweeney used in 2019—“misinformation”—is also the word that Governor Sherrill’s acting Labor Commissioner, Kevin Jarvis, just used in the press last month as her administration faces 99% public opposition and pushback from high-ranking Democrats in her own party in the Legislature.

And while Governor Sherrill didn’t say “misinformation” on television last night, she did use a similar word: “misunderstanding.”

“I think there’s a lot of misunderstanding of what’s in this test,” Governor Sherrill said on News12. “If there are areas where it has somehow swept people in [inaudible] who should not be there, then I am more than happy to work with the Legislature on carveouts for those groups.”

That last bit, about carveouts, is new, and it is notable for three reasons.

First, it goes against what the politically powerful New Jersey AFL-CIO (which helped Sherrill get elected) has been saying, about how my home state should have no new carveouts for any professions from the ABC Test to determine independent-contractor status.

Second, it sets up legislators at the State House to bear the brunt of having to pass bill after bill as profession after profession, with hundreds of professions affected, comes looking to them for protection so independent contractors of all kinds can simply continue to earn a living.

And third, it means that New Jersey’s independent contractors are now arguably in an even worse position than California’s were when that state enacted its disastrous ABC Test law in 2019.

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We’re Talking Doctors, Lawyers, Engineers…

As I wrote more than a year ago in a Q&A with Karen Anderson of California, what happened with carveouts from the ABC Test in that state was utterly insane.

Anderson is the founder of Freelancers Against AB5, the leading advocacy group in California that is still trying to figure out how to get that state’s ABC Test law repealed. She is currently a Future of Work Fellow with the Institute for the American Worker in Washington, D.C., an excellent program about labor and employment policy that I completed earlier this year. And, Anderson and I both testified before Congress on this issue in 2023, when her testimony included the following passage, some three years after California’s ABC Test law and a cleanup bill that followed it had gone into effect:

“To this day, despite the so-called exemptions for certain professions added in September 2020 via the cleanup bill AB2257, the law continues to wreak havoc on legitimate independent contractors and small-business owners. As it turns out, many of the exemptions come with caveats and fine print that make some exemptions nearly impossible to take advantage of. The convoluted language in the law also creates a chilling effect in which businesses don’t want to utilize independent contractors from California at all, even if there is a pathway to an exemption—because there are so many potential landmines.”

All of that happened in California after the ABC Test law was enacted with dozens of professional carveouts already in it.

California’s carveouts included what Anderson describes as “favored professions at the Capitol,” including doctors, lawyers, accountants, veterinarians, dentists, real-estate agents, private investigators, engineers, travel agents, psychologists, architects, commercial fishermen and many more. “The exemptions were controlled by a single lawmaker, and were capricious and arbitrary,” Anderson says. “Backroom dealing took place.”

Choices about which professions got carveouts in California were also largely dictated by Big Labor, according to members of the California Advisory Committee to the U.S. Commission on Civil Rights, who wrote in 2024:

“The California legislature essentially outsourced the decision-making process for obtaining an exemption from AB5. The result was the politically powerful and those in industries not historical targets of organized labor were more readily able to obtain an exemption.”

Even with more than 100 professions ultimately receiving some kind of a carveout in California, Anderson—whose Facebook group includes more than 18,000 people—collected so many real-life stories that she was able to document more than 600 affected professions.

Congressman Kevin Kiley of California read that list into the public record on the floor of the U.S. House of Representatives, trying to warn the rest of the country about the widespread harm that this kind of ABC Test policymaking can cause.

Even reading at a fast pace, it took him 10 full minutes to name all the professions:

And notably in the context of what happened on TV here in New Jersey last night, all of those professions were affected after the Assemblywoman who sponsored California’s ABC Test law—a card-carrying Teamster who today leads the California Federation of Labor Unions, AFL-CIO—went on television and claimed that all she was trying to do was codify what already existed.

Yes. Really.

Good luck to us all here in New Jersey, where we’re starting from zero carveouts in the new independent-contractor rule, and it’s now every profession for itself.

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New Jersey’s Legislature Must Act

The best choice that New Jersey’s lawmakers could make right now would be to pass Senator Declan O’Scanlon’s concurrent resolution, SCR62, and its Assembly companion, ACR75, that Assemblywoman Vicky Flynn sponsored. These concurrent resolutions have been sitting in Trenton ready to go since January.

SCR62 and ACR75 would invalidate the Labor Department’s rulemaking, giving the Legislature all the time it needs to correct this policy mess with legislation. They do not require the governor’s signature to take effect.

I would also suggest that the Legislature pursue the recommendation that the New Jersey Chamber of Commerce and the NJBIA made to create a task force on this policy issue:

“We respectfully request that your Administration delay the regulations until July 1, 2027, and work with the Legislature to establish a balanced task force representing workers, organized labor, independent contractors, employers, nonprofits, and other affected stakeholders. Nine additional months would allow New Jersey to examine the experiences of other states, evaluate the economic evidence, hear directly from affected workers and businesses, and develop a framework that targets genuine misclassification without jeopardizing legitimate independent work.”

After that, with what I would hope are task-force recommendations based on accurate information—and not the mischaracterized data and research that Governor Murphy’s task force produced—New Jersey’s Legislature could at long last put in place meaningful guardrails to protect the incomes and careers of all the state’s estimated 1.7 million independent contractors going forward.

Barring that kind of an outcome in the near future, we are going to experience absolute carveout chaos.

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This letter from Senate Republican Leader Anthony Bucco and Assembly Republican Leader John DiMaio comes amid 99% public opposition to the Labor Department rulemaking, as well as continuing widespread opposition from across the broader business community.

With the addition of Senator Bucco and Assemblyman DiMaio’s letter today, three out of four leaders of the Legislature have now publicly requested a delay in this rule’s implementation. Senate President Nick Scutari, a Democrat, asked for the same delay back in August.

The only holdout among top brass in the Legislature who has not spoken out about the need to protect independent contractors is Assembly Speaker Craig Coughlin, a Democrat.

Here is the three-page letter that Republican leadership sent to Governor Sherrill today:

Senator Bucco used to be my state representative prior to redistricting, and I can personally attest that he has stood shoulder to shoulder with independent contractors ever since this policy mess began in our state back in 2019.

Assemblyman DiMaio is from the town next door to mine, and I can also personally attest that he understands this policy problem through his work in the construction industry. We spoke about this most recently over the summer, and he is fully on board with supporting the freedom to be our own bosses, too.

These leaders could not be more correct in writing this letter, and this part of it in particular:

"A policy this consequential should be decided through the legislative process, not administrative rulemaking."

Their letter also notes that the last time this policy question came before the Legislature, in 2019, lawmakers declined to pass the bill.

That ABC Test bill faced widespread public opposition, too.

Trenton’s Phone Lines are Flooded

Based on my own calls a couple hours ago to the offices of Governor Sherrill, Senator Scutari and Assemblyman Coughlin, angry independent contractors from all kinds of professions are pounding their phone lines today.

Some of the staffers sounded deeply frustrated when I called. Governor Sherrill’s staffer told me that office alone had received hundreds of calls by about lunchtime. When I asked if I could leave my name, she hung up on me.

Governor Sherrill is expected to appear tonight on News12’s “Ask the Governor” segment. Quite a few independent contractors I know have sent in questions, trying to get some kind of a meaningful response.

Hopefully, the show’s host will ask one of our questions, which you may recall happening with Sherrill’s predecessor, Phil Murphy—whose Labor Department is the one that began this deeply misguided rulemaking process, and who laughed out loud at our concerns on live TV.

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We keep being told that we need extreme, unprecedented new laws and regulations to crack down on the business practice of independent contracting because:

• a task force report in 2019 said misclassification rose 40% in New Jersey (based on wholly mischaracterized data and research that then found its way into nationwide research that I refuted in 2025 while testifying before Congress)

• unionists in high-ranking elected and appointed government jobs keep saying “billions of dollars” are being lost (still waiting on proof of that claim to materialize, not just in New Jersey but also in California)

• independent contractors from all kinds of professions in New Jersey are applying for unemployment and being stunned that they’re not eligible (turns out it’s only about 700 a year, and almost all of them are rideshare and delivery drivers)

• employee misclassification is so out of control that regulators can’t possibly deal with it unless laws and regulations change (that hasn’t been true since at least the federal Planmatics report that referenced New Jersey auditors stopping misclassification by using language called the IRS Test more than a quarter century ago)

And without question, here in my home state of New Jersey, the AFL-CIO has been the loudest voice spreading this narrative about employee misclassification being a massive, widespread problem.

Here’s the New Jersey AFL-CIO pushing the narrative in 2019:

“The issue of worker misclassification, where workers are intentionally classified as independent contractors rather than as employees, has been a significant problem in New Jersey and throughout the nation for over 20 years and continues to grow.”

Here’s a more recent example from the New Jersey AFL-CIO in a 2025 written public comment:

“Despite the significant amount of work done to address the misclassification of workers as independent contractors, certain industries continue to see widespread, rampant, intentional misclassification. For this reason, the job is far from over. Heightened enforcement by the State Department of Labor and Workforce Development is essential and the adoption of these rules are important steps that should be approved to accomplish this.”

And here’s New Jersey State AFL-CIO President Charles Wowkanech in May 2026:

“The intentional misclassification of workers by unscrupulous business negatively impacts workers in all sectors of our economy. From app-based transportation companies to health care to construction to public sector to trucking and entertainment production, among others, workers are being cheated out of earned benefits and wages, and that must end.”

Given all of the above, you can imagine how surprised I was to read the following press release that the New Jersey AFL-CIO put out last week:

Did you notice which word they moved?

Apparently, it’s no longer a campaign against “widespread misclassification.”

It’s now a “widespread campaign” to prevent the misclassification of employees as independent contractors.

And I must stress, because the chutzpah of it is truly incredible, that the New Jersey AFL-CIO wrote this in a press release promoting an easily dissected article where acting Labor Commissioner Kevin Jarvis—a former New Jersey AFL-CIO employee himself—all but accuses the 99% of the state that stands united in opposition to this madness of being the ones who are spreading misinformation.

Four Days Left to Stop This Lunacy

October 1 is this Thursday. That’s the day when the independent-contractor rule that Jarvis’ Labor Department adopted is scheduled to take effect.

Everyone from the New Jersey Chamber of Commerce to the New Jersey Bar Association and the state Senate President is trying to talk some sense into Governor Mikie Sherrill so that her administration will give the Legislature more time to act.

This rulemaking never should have gone forward in the first place. At this point, I sincerely hope that its implementation date will be delayed, and that our elected officials will listen to the request that is in front of them to create a balanced task force.

We need a real task force this time, one with participants who are actual independent contractors and who represent the broader business community, so that this policy disaster can be straightened out before we are forced to endure the same kinds of results that the acting U.S. Labor Commissioner called “catastrophic” in California.

Everyone has always agreed that employee misclassification is wrong. But pretty much nobody other than unionists—whom the law prevents from unionizing anyone other than people classified as employees—believes anymore that misclassification is a rampant, widespread problem across hundreds of professions.

What we need are ways to target the handful of bad actors who are misclassifying employees while ensuring that strong guardrails are in place to protect the vast majority of legitimately operating businesses and the livelihoods of New Jersey’s estimated 1.7 million independent contractors.

Our elected officials have four days left to make that happen in my home state.

It never should have come to this, and whatever solution ultimately gets put in place should never allow it to come to this again.

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You can read the letter in full here:

NJBIA-Chamber Joint Letter Pushing Back On Looming ABC Rules

197KB ∙ PDF file

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In the letter, the organizations also say they would like the Sherrill administration to work with the Legislature to create a task force—one that would include actual independent contractors—to try and fix this policy mess.

The letter states:

“We respectfully request that your Administration delay the regulations until July 1, 2027, and work with the Legislature to establish a balanced task force representing workers, organized labor, independent contractors, employers, nonprofits, and other affected stakeholders. Nine additional months would allow New Jersey to examine the experiences of other states, evaluate the economic evidence, hear directly from affected workers and businesses, and develop a framework that targets genuine misclassification without jeopardizing legitimate independent work.”

That’s a very good idea. The task force that Governor Phil Murphy created to kick off this entire policy nightmare almost a decade ago issued a report that’s filled with mischaracterized data and research. And since that report came out, claiming that we need all kinds of new laws and policies to address a “growing problem” of employee misclassification, Sherrill’s own acting Labor Commissioner has confirmed that the Department of Labor and Workforce Development is only receiving about 700 claims a year from independent contractors—in a state with an estimated 1.7 million independent contractors.

We are enduring some of the most extreme independent-contractor policymaking in the nation, all of it being done based on claims that are iffy at best, and all of it happening without any leadership or meaningful input from the actual independent contractors whose livelihoods are on the line.

It’s long past time for that to change. A real task force that actually includes our voices, and that bases its recommendations on properly vetted data and research, would be a big step in the right direction.

‘Of Greater Concern…”

Also speaking out—again—against this independent-contractor rulemaking in my home state is the New Jersey Bar Association, which sent a letter to Governor Sherrill on September 22, joining the chorus of voices urging the administration to stop this rule from taking effect October 1.

You can read that letter in full here:

NJ Bar Association Letter to Governor Sherrill

334KB ∙ PDF file

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This letter states:

“The Association remains concerned about the impact of these revised regulations on attorneys – especially solo and small firms practitioners – which make up the large majority of attorneys in this state. Solo and small firms often use the services of per diem counsel as the need arises. The ABC test – in particular the revision to Prong C – risks the misclassification of these per diem attorneys for simply lacking formal business trappings, despite functioning as bona fide independent businesses.

“Of greater concern is the open question of the impact of these modified regulations on the use by these smaller firms of limited-scope assistance in addition to per diem attorneys, namely paralegals, accountants, investigators, and the like.”

These concerns, too, are not new. In an August 2025 public comment, the bar association detailed similar problems with the independent-contractor rulemaking.

As you’ll see if you click through on that link, the state’s own Office of the Public Defender issued a public comment at that time too, stating that the “the proposed rules risk undermining access to justice.”

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‘Uncertainty over Intellectual Property’

I was particularly happy to read this op-ed that BINJE published by Adam Perle, the CEO of ArtPride, who detailed smart concerns about this independent-contractor rulemaking for the arts community—including a concern about intellectual property that parallels what I wrote about copyright-law concerns for writers like me when I testified before Congress about freelance busting in 2025.

Perle wrote:

“Classification may also create uncertainty over intellectual property. A teaching artist’s curriculum, a choreographer’s work, a designer’s concepts, or a musician’s original material may be used across many engagements. Artists should not risk losing control of work they created simply because a short-term project is treated as employment.”

That’s eerily similar to what I wrote when I testified about freelance busting before the U.S. Senate HELP Committee in 2025:

“Under U.S. copyright law—which dates all the way back to the Copyright Act of 1790—the minute we put pen to paper as writers and authors in this great nation, we own the copyright to whatever we create. That means we also have the right to sell it, to slice it and dice it, and to sell it again and again. It means we get the financial upside if we write something the public loves.

“By comparison, if we are forced into employee status, then the employer owns the copyright. The corporations get all the financial upside, and we are forced to accept whatever crumbs they give us.

“Some 66% of writers and authors in America are self-employed, according to the U.S. Bureau of Labor Statistics. Any lawmaker who wants to protect us needs to stand up for our freedom to be independent contractors, too.”

Perle, in his recent op-ed, also laid out specific examples of how this independent-contractor rulemaking is problematic for the arts community, examples that I cannot fathom anyone failing to understand.

He wrote:

“Consider a national touring act booked to perform for one night at a New Jersey performing arts center. The artists arrive with their own program, work at venues throughout the country, and have no continuing relationship with the presenter.

“But the performing arts center is in the business of presenting performances, and the engagement takes place on its stage.

“Should the center be required to treat those touring artists as its employees for that one performance?”

Of course not. That’s the answer to the question Perle asks here, in the minds of any reasonable, rational people.

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‘Nationwide Implications’

Also in recent days, attorney Richard Reibstein—a long-established expert on independent-contractor law—published this article about the national implications of the deeply misguided policymaking that Governor Sherrill’s Labor Department is embracing.

Reibstein wrote:

“The new regulation still carries out one of the most business-unfriendly tests for IC status in the country and, as noted below, interprets that test in a particularly unhelpful manner. While some companies may mistakenly regard this New Jersey regulation as only governing businesses located or operating a facility in New Jersey, it also impacts companies operating on a nationwide basis that engage any New Jersey workers who perform services from their home offices or other business locations in New Jersey.”

He also writes:

“… the new IC regulation in that state, soon to become effective, will give many companies that engage any workers in New Jersey even greater concern than they had prior to the time the NJDOL began its administrative process.

“As noted above, the new regulation applies not only to companies physically located and operating in New Jersey but also to businesses operating in New Jersey on a ‘virtual’ basis from their headquarters in other states when they use remote workers from across the U.S. including New Jersey. For this reason, some companies operating remotely may choose to curb their use of ICs that live or work in New Jersey, thereby curtailing opportunities for ICs and other freelancers that reside in the Garden State.”

October 1 is this coming Thursday. All of us in New Jersey who earn some or all of our income as independent contractors—an estimated 1.7 million people—need our elected officials to stop this ABC Test madness.

We then need meaningful guardrails put in place to ensure that this kind of attack on our fundamental freedom to earn a living can never, ever happen again.

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You can find the link to the “Speak for America with Bill Spadea” channel here, with my segment near the top.

He talks in this clip about, among other things, how this rulemaking will affect him too, because some of the work he does is as an independent contractor.

Source Material for Everything I said on This Show

• Op-ed that then-New Jersey Senate President Steve Sweeney wrote about “misinformation” where he compared freelancers like me to Russian disinformation agents who interfere in elections, because we said he was trying to copy California’s ABC Test law

• New Jersey Labor Department acknowledgment that Sweeney’s bill in 2019 was, in fact, trying to copy California’s ABC Test law

• New Jersey acting Labor Commissioner Kevin Jarvis’ recent comments in the press, once again claiming “misinformation” (and my breakdown of why he parsed his words the way he did)

• Report by members of the California Advisory Committee to the U.S. Commission on Civil Rights that found that state’s ABC Test law had a disproportionate and negative impact on women, immigrants, people of color and the politically powerless

• Public comment that economists filed with the New Jersey Labor Department showing that the way the state is using the ABC Test right now is already causing harm, and disproportionately to women

• A breakdown of the written public comments that New Jersey’s Labor Department received, showing 99% opposition to this ABC Test rulemaking, and including a list of the two dozen or so comments that were the only ones in support—mostly from unions and organizations like multimillion-dollar think tanks that have strong union ties

• An analysis of how what’s happening in New Jersey’s media right now is a replay of what happened in California, right down to some of the talking points that the unionists out there tried to use, too

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Here is a PDF of the report for anyone who wishes to download it. I uploaded this PDF on October 19:

Future of Work Report

491KB ∙ PDF file

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Yesterday, the New Jersey Monitor published an article quoting acting Labor Commissioner Kevin Jarvis about the state Labor Department’s widely opposed independent-contractor rule that is scheduled to take effect October 1:

Among the things Jarvis says in this article, trying to defend the way the New Jersey Labor Department plans to interpret the ABC Test to determine who is a legal independent contractor:

“There’s absolutely some frustration because we’re swimming upstream against a river of misinformation. This is not a new test. This is not a change in enforcement. The reason the regulations were adopted is because the New Jersey Supreme Court recommended the department exercise its regulatory authority.”

Jarvis also is quoted as saying:

“All the groups I keep hearing from who keep saying it’s going to take away their flexibility or it’s going to change how they do their business and it’s some sort of an expansion, I’ve asked on multiple occasions for someone — anyone — point to me what specific reg is different than the way it was before. I’ve yet to get an example.”

The reporter added, citing Jarvis for attribution without directly quoting him:

Employers are not barred from giving employees flexible hours, Jarvis said, and law does not limit workers to a single job.

I seriously do not know where to start with this article. Those three blocks of text are such a lawyerly parsing of words that do a masterful job of obfuscating the whole truth, we all should see what acting Commissioner Jarvis said as a work of true creative art.

So let’s go big time here. Let’s go really long. Since we have less than two weeks left before New Jersey’s freelance-busting rule will take effect—and since at least some members of the New Jersey Legislature are still apparently confused about why they need to step in and stop these relentless, remorseless attacks on our incomes and careers—let’s go all the way back to 2013 and set everybody straight on as many of the facts as I can fit into one of these Substacks.

Because in order for everyone to understand what’s happening right now in my home state of New Jersey—and to understand why acting Commissioner Jarvis is leaving out so much of the rest of the story—you have to realize that we have been here before. There’s been a buildup to this moment.

Quite a big buildup, actually. One that spans from sea to shining sea.

And year after year, time and again, it’s been our side that has always ended up being proven right in the end, no matter how many “officials” like Jarvis point their fingers at us and accuse us of being wrong.

David Weil: The Philosopher King of Freelance Busting

Believe it or not, a lot of what’s happening here in New Jersey in the year 2026 started more than a decade ago in Washington, D.C.

In September 2013, President Obama nominated an academic named David Weil to serve as administrator of the Wage and Hour Division of the U.S. Department of Labor. It looked like any other nomination, put out from the White House in a list:

Weil, by the time he was nominated to this significant role in the federal government, had been writing for the better part of two decades about his ideas to help regrow unions. He’d written about how there were basically two ways to think about nonconforming people like independent contractors. One way, he wrote, is that we are “a fundamental challenge to unionism.” Another way, he wrote, is that we are a “strategic challenge” that requires unionists to “develop methods to organize and represent” us.

In December 2013, Weil had his confirmation hearing before the U.S. Senate HELP Committee, where it came out in an exchange with U.S. Senator Lamar Alexander, a Republican from Tennessee, that Weil was working on a new book:

As it turned out, that book, released about two months later in February 2014, was a 424-page diatribe that Harvard University Press published about everything that’s wrong with independent contracting in America.

Weil didn’t seem to speak with any independent contractors while researching his book—not that there weren’t plenty of us who could’ve set him straight in a nation where only 8% of us of us would rather have the kind of traditional job that Weil wants to force us all into.

Instead, Weil made the case that we’re all essentially victims of a broken system. He coined a term—the fissured workplace—to describe his idea that the government needs to put our nation’s way of working back together into his ideal of more unionized company employees.

Two months after that book landed, in April 2014, the U.S. Senate confirmed Weil for the U.S. Labor Department role. And a little more than a year after that, in July 2015, Weil decided not to wait for Congress, the courts or any kind of a public-comment process to play out before he instituted his own personal beliefs nationwide.

Pay close attention: This is the first part that’s an awful lot like what’s happening in New Jersey today.

From inside his lofty perch at the U.S. Department of Labor in 2015, Weil issued what’s known as an interpretation. He basically said sure, the Fair Labor Standards Act exists as words on paper. It’s a law that Congress passed in 1938. It’s not new. But from here on out, this is the new way that I’m going to interpret what this law means as I enforce what I perceive to be violations of it.

Attorneys at the time wrote:

“Under the statute's definition of employment, the DOL would find that most workers qualify as employees, not independent contractors. … The bottom line is that businesses are facing a time of unprecedented uncertainty as the government continues to change the definition of both who is an employer and who is an employee.”

More attorneys at the time wrote:

“The DOL’s new interpretation of the FLSA test for classification purports to eliminate independent contractor status for most workers … Purportedly spurred by the receipt of ‘numerous complaints from workers alleging misclassification’ and the history of ‘successful enforcement actions against employers who misclassify workers,” the interpretation ignores decades of legal precedent concerning the classification of employees and independent contractors in a way that will now challenge many legitimate independent contractor relationships.”

Weil’s interpretation of who would get to earn income legally as an independent contractor didn’t last long at the U.S. Labor Department. The first Trump administration came in and withdrew it, and it no longer exists.

But the idea was planted about independent-contractor policy, that it was possible to turn all kinds of self-employed people into unionizable employees not just by passing new laws, but also by issuing new interpretations of existing laws.

And that idea was about to spread all across the country, ultimately leading to what we are experiencing in New Jersey right now with the ABC Test.

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The Strategy Meetings

In 2018, a report came out, co-authored by four members of Congress: Mark DeSaulnier of California, Mark Pocan of Wisconsin, Donald Norcross of New Jersey and Debbie Dingell of Michigan.

This report makes clear where the foursome, all big union supporters, got a lot of their ideas:

“In March 2016, after working together on the U.S. House Committee on Education and the Workforce, Congressmen Mark DeSaulnier and Mark Pocan met with Wage and Hour Administrator Dr. David Weil from the Obama-era Department of Labor.”

This report waxes poetic about labor unions, stating things like:

• “Every person in the labor market today owes a debt of gratitude to labor unions.”

• “The benefits of being represented by a labor union are also numerous.”

• “Empirically, union members are in many ways better off than their non-union counterparts.”

It then goes on to channel David Weil’s thinking about making new laws and changing interpretations of existing laws so that more people would be considered unionizable employees—and it adds specific policy prescriptions.

For instance, this report talks about redefining all workers as employees, rightfully or not, across any industry “where misclassification and fissuring are endemic.” Who decides what endemic fissuring means? Ostensibly, the same people who want more of us to be reclassified as unionizable employees against our will.

This report talks about requiring companies that hire independent contractors to provide contact information for local administrative agencies, workforce development boards and legal services organizations that could help the independent contractors contest their employment status—with any companies that failed to do so being liable for damages.

This report describes ideas that the authors themselves call “admittedly radically different,” such as the government granting a union collective bargaining power across entire industries or sectors, instead of giving the employees at each workplace a vote on whether they actually wish to join a union at all.

And then, with these and other policy prescriptions laid out in detail, this band of merry unionists held meetings in select locations across the country to share their ideas with people who just might be able to turn them into real-life policy.

Look at the report’s list of who attended the August 2017 meeting in New Jersey:

New Jersey Senate President Steve Sweeney would go on to introduce ABC Test legislation in 2019, threatening the livelihoods of independent contractors all across the state while Charlie Wowkanech of the New Jersey AFL-CIO and the Teamsters cheered him on.

Robert Asaro-Angelo would go on to become New Jersey Labor Commissioner during the administration of Governor Phil Murphy, and to propose the ABC Test independent-contractor rule that his successor, acting Labor Commissioner Kevin Jarvis—himself a former New Jersey AFL-CIO employee—is currently trying to defend, also with the AFL-CIO and the Teamsters cheering them on.

Seth Hahn would go on to become executive director of the Assembly Majority Office, giving him the ear of Assembly Speaker Craig Coughlin, who recently got an award from the New Jersey AFL-CIO and, thus far, has refused to speak out about protecting independent contractors the way numerous other members of Democratic Party leadership have done.

And what, you ask, actually happened when all of these men and their union brothers and sisters actually started to put their strategies into motion in the real world?

Total chaos, and the continuing organization of pretty much everyone—against them.

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California, 2018-19

There were a couple of meetings in California to push the Weil-inspired thinking, too: in August 2016 at the University of California campus in Los Angeles, and in January 2017 in Northern California. Those meetings happened prior to April 30, 2018, which is when the California Supreme Court made a landmark ruling in a case known as Dynamex Operations West.

This court ruling was a big deal in the world of independent-contractor policy. And notably, a mention of Weil’s book The Fissured Workplace showed up in this ruling, which seemed to impose the ABC Test out of the clear blue sky to determine independent-contractor status in California.

Years later, members of the California Advisory Committee to the U.S. Commission on Civil Rights would describe what happened as a situation of judicial activism:

“In 2018, the California Supreme Court decided Dynamex v. Superior Court, a classification case. None of the Dynamex parties proposed the adoption of a brand-new test for classification when the case was briefed or in the lower courts. Long after the case had been briefed, and just weeks before oral argument, the California Supreme Court invited the parties to submit letter briefs on whether it should adopt a new test. Less than three months after oral argument, the California Supreme Court, without prompting from the litigants, unilaterally and retroactively, imposed the ‘ABC Test’…”

Now, that Dynamex decision also included a line saying that California’s Legislature, of course, retained the authority to revise any provisions by enacting new legislation. Put another way, as many people have explained in the years since, the court made clear that the California Legislature could step in and stop what was happening with the ABC Test.

But that’s not what state Assemblywoman Lorena Gonzalez, a card-carrying Teamster, went on television and told everyone across the state. Gonzalez—who today is the head of the California Federation of Labor Unions, AFL-CIO—instead made it seem as if the Legislature’s hands were tied, and as if California’s lawmakers absolutely had to pass legislation known as Assembly Bill 5, or AB5, that codified this ABC Test from the Dynamex ruling.

Pay close attention: This is the second part that’s an awful lot like what’s happening in New Jersey today:

Contrary to what she said there, Gonzalez made clear on Twitter what the ABC Test law was actually intended to achieve:

And Gonzalez didn’t seem to care how many independent contractors lost their incomes and careers as she and her unionist friends attempted to set this process in motion.

As reported in The Orange County Register:

“Freelance jobs are ‘feudalism,’ says California Assemblywoman Lorena Gonzalez. … Once the bill passed, Vox media cut hundreds of freelance writing jobs. When Gonzalez was asked if she felt bad about that, she sneered, those weren’t ‘real jobs.’”

Gonzalez also didn’t seem to have any problem with using mischaracterized research to try and convince everyone that a widespread crackdown on independent contractors was necessary.

Pay close attention: This is the third part that’s an awful lot like what’s happening in New Jersey today:

“A former union organizer turned legislator in District 80, Gonzalez has stated repeatedly that the state of California loses $7 billion a year in payroll tax revenues because of independent contractors.

“As it turns out, her claim is without evidence and has no basis in fact, according to William Hamm, managing director of Berkeley Research Group’s San Francisco Bay Area office. His team helped lead a study beginning in 2019 about the fiscal impact of independent contracting in California.

“‘Her claim is utter nonsense,’ said Hamm, former head of the non-partisan Legislative Analyst’s Office in California. ‘Anyone who cites this $7 billion number is doing so knowing full well that it is completely bogus.’”

The actual result of California’s ABC Test law, according to that same Legislative Analyst’s Office, was somewhere in the neighborhood of 1 million people being affected. Union membership, in the years that have followed, continues to be down. Economists at the Mercatus Center found that the ABC Test law in California preceded a 10.5% decrease in self-employment on average for affected occupations, as well as a 4.4% decrease in overall employment on average for affected occupations.

The economists had to write “affected occupations” because the California Legislature ultimately went back and exempted more than 100 professions from the ABC Test law so that people could try to keep earning a living as independent contractors. As one attorney wrote about what he called “a flawed piece of legislation from the very beginning”:

“… consider the fact that while the rules for who AB 5 applies to are a mere 325 words, they’re followed by almost 7,000 words worth of carveouts.”

The ABC Test injected into the Dynamex court ruling via judicial activism and then expanded through legislation was a disaster.

A disaster that the State of New Jersey—led by Senate President Steve Sweeney—immediately tried to copy.

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New Jersey, 2019-20

In November 2019, just two months after California Governor Gavin Newsom signed that state’s ABC Test bill into law to limit the use of independent contractors, New Jersey Senate President Steve Sweeney introduced New Jersey Senate Bill 4204, a virtual copycat of California’s catastrophic freelance-busting language.

Now, at the time, Sweeney swore up and down to high heaven and whatever might possibly be above it that he was absolutely, positively, under no circumstances trying to copy California’s ABC Test law.

Pay close attention: This is the fourth part that’s an awful lot like what’s happening in New Jersey today.

As reported by InsiderNJ back in 2019:

“These bills will simply codify into law existing regulations so that future administrations can’t ignore, change or discard the protections already in place to protect workers against the loss of basic rights by being misclassified,” said Senator Sweeney, the sponsor of the Senate bill. “We want to put into law the current regulations to ensure their future viability. The amendments to the bill will continue to ensure the ability of legitimate independent contractors to pursue their work at the same time they safeguard against misclassification.”

The legislation is not the same as the California law.

When some of us said in testimony and wrote in op-eds that, um, this Sweeney bill absolutely was an attempt to copy California and wipe out independent contractors here in New Jersey too, Sweeney responded with an op-ed of his own, in The Asbury Park Press.

Sweeney used the word “misinformation” and compared us to “Russian operatives trying to interfere in our elections.”

Yup. Our own state Senate President actually wrote that about independent contractors like me.

And of course, Sweeney was ultimately proven to be the one spreading misinformation. His ABC Test bill later failed to advance, and years after that—amazingly, within the text of the ABC Test rule that acting Labor Commissioner Jarvis is currently trying to defend—the State of New Jersey finally acknowledged that we were the ones who were telling the truth back in 2019 about what our own government was trying to do to us:

“As to the 2019 New Jersey bill (S4204), as introduced, it would have altered New Jersey’s statutory ABC test in ways that made it virtually identical to the ABC test in California AB5.”

So, there’s that bit of actual truth. There were also repeated failures in Congress that followed as the merry band of unionists tried to pass the Protecting the Right to Organize Act, which would have injected California’s horrific ABC Test into federal law to crush independent contractors nationwide, a move that the former head of the National Labor Relations Board wrote would “substantially unravel and change large segments of the US economy.” That apparently sounded great to the AFL-CIO. Its top boss at the time even joined forces with the Democratic Socialists of America to try and make it happen.

And lest we forget, there were also the moderate Democrats who stepped in to stop President Biden’s attempt in 2022 to bring back the Philosopher King of Freelance Busting, David Weil, as Wage and Hour Administrator at the U.S. Labor Department:

All of which brings us to what’s happening right now in New Jersey—and how the decidedly un-moderate administrations of Governor Phil Murphy and Governor Mikie Sherrill are still trying to spread this freelance-busting ABC Test lunacy with the strong backing of the AFL-CIO, in particular.

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New Jersey, 2025-Present

When Governor Murphy’s labor commissioner, Robert Asaro-Angelo, proposed the ABC Test rulemaking in 2025, the state Labor Department’s press release repeated a lot of things that you just read about above, all of which turned out to be bunk.

There was the bit in New Jersey’s press release that’s reminiscent of what David Weil did at the U.S. Department of Labor, about how the ABC Test wasn’t changing in New Jersey, and only the state Labor Department’s interpretation of the law was being codified:

“Those new rules at N.J.A.C. 12:11 would codify the NJDOL’s interpretation of the ABC test for independent contractor status…”

There was the bit that’s reminiscent of what Lorena Gonzalez said in California, about how this rulemaking was just the New Jersey Labor Department doing what the courts had urged in a unanimous decision:

“The proposed new rules stem from the NJDOL’s interpretation of the statutory ABC test, and are informed by binding decisions of the Appellate Division of the New Jersey Superior Court and the New Jersey Supreme Court, including the New Jersey Supreme Court’s 2022 unanimous ruling in East Bay Drywall LLC v. Department of Labor and Workforce Development, in which the Court expressly suggested ‘that the Department exercise its statutory authority and expertise… to promulgate regulations…”

And as a sweet cherry on top, the New Jersey Labor Department’s press release added a nugget about how Governor Murphy’s Task Force on Misclassification had issued a “comprehensive report” about the problem of employee misclassification—a report that, also in California style, has since been shown to contain all kinds of mischaracterized data and research.

Now, if you’ve read this far, you already understand the kinds of damage that a horribly overreaching bureaucratic interpretation of existing law can do, even if that existing law is really old. A new interpretation can almost entirely eviscerate anyone’s ability to be an independent contractor—which is how attorneys described the proposed New Jersey rulemaking in 2025. They called the Labor Department’s originally proposed interpretation of the existing ABC Test an existential threat to independent work itself.

You also know at this point that when one of these unionists claims they’re just trying to codify something because of some ruling that came down in the courts, you need to dig a little deeper.

And when you do that in New Jersey, you see that the East Bay Drywall ruling in no way, shape or form said the state’s Labor Department should create an independent-contractor rule with what experts called unprecedented interpretations of the ABC Test, interpretations that numerous state Senate committee chairmen said seemed to be outside the bounds of statute and case law.

What actually exists in the East Bay Drywall ruling is a single footnote that says some kind of clarification is needed, because nobody could determine the meaning of the words in the ABC Test regulatory language anymore:

And it was on that note that the ABC Test rulemaking to determine independent-contractor status went forward in New Jersey, despite all the evidence that came before it of just how destructive it would be. This rulemaking led yet again to the AFL-CIO and the Teamsters cheering amid massive public outcry—this time including 99% opposition in written public comments, along with a couple dozen letters from lawmakers on both sides of the political aisle expressing concerns, and research from economists showing that the way New Jersey is applying the ABC Test is already causing harm, in fact, disproportionately to women.

New Jersey’s Labor Department ignored virtually all of that pushback. Instead, the adopted rule states outright that the evidence about data and research being mischaracterized in the Murphy Task Force Report is irrelevant, even though the Department itself cited that very same Task Force Report as “comprehensive” when it announced the ABC Test rulemaking:

The adopted rule also states that the Labor Department will not consider any of the challenges it received with regard to the economic impact of what it’s doing with the ABC Test rulemaking:

Now, it’s true that the version of the rule that New Jersey’s Labor Department adopted—the version that’s scheduled to take effect October 1—did scale back some of the truly insane interpretations of the ABC Test that the Labor Department said it was merely trying to codify because it was already using them (apparently without the Legislature’s consent or knowledge).

But even so, there are still big problems with the adopted rule, including the fact that nobody can seem to tell us independent contractors how to pass the part of the ABC Test that says we have to prove we’re running a business.

As attorneys noted:

“Under Prong C, the final regulations still specify that holding a professional license, having multiple employers, registering a business entity, receiving a 1099 tax form, or carrying insurance are not individually sufficient to establish an independently established business.”

Think about it: If registering a business entity isn’t enough to prove that you’re doing business as a business entity, then how do you prove you’re in business?

There’s also the fact that in recent testimony at the State House involving the New Jersey AFL-CIO, it came out that there doesn’t actually seem to be widespread employee misclassification across all kinds of professions in the first place.

That’s right, it’s California-style craziness in New Jersey yet again. This whole policy mess is happening because, supposedly, we have this massive problem of employee misclassification that needs to be resolved.

And yet, in a state with an estimated 1.7 million independent contractors, testimony recently revealed that New Jersey’s Labor Department is only receiving about 700 claims a year of this nature, and almost all of them are coming from just one kind of worker: rideshare and delivery drivers.

Which is how we got to where we are now, just as with Steve Sweeney back in 2019, with acting Labor Commissioner Jarvis claiming “misinformation” in the press.

Because if people can’t win a debate on the facts, they will always attack the messenger.

And oh, what a stupendous attack yesterday’s against us was.

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Yesterday’s Kevin Jarvis Quotes

Take another look at the quotes that New Jersey acting Labor Commissioner Kevin Jarvis gave to the New Jersey Monitor yesterday, and think about them again in the context of everything you just read above.

“This is not a new test.”

Yes, that’s true—the ABC Test in New Jersey is not new, in the same way that the Fair Labor Standards Act wasn’t new when David Weil decided to interpret it in a completely new way, and the same way that the ABC Test wasn’t new when California decided to use it in a new way.

Just because the language on the page isn’t changing doesn’t mean the effects of interpretation and implementation are staying the same.

“This is not a change in enforcement.”

Also likely true—and also likely an admission, not a reassurance.

As testimony and public comments keep making clear, and as New Jersey’s Labor Department itself said in its own press releases about this rulemaking, what it’s doing is codifying the Department’s interpretation of the ABC Test. It’s an interpretation the Department has apparently been using for years, an interpretation that has at various points in this process been revealed to be outside the bounds of statute and case law, and unprecedented in the nation.

That doesn’t make it right. It makes it a big problem of bureaucratic overreach that the Legislature needs to step in and correct.

“The reason the regulations were adopted is because the New Jersey Supreme Court recommended the department exercise its regulatory authority.”

True, there is a footnote in a court case saying the Labor Department should clarify what, exactly, the ABC Test means, because this test to determine independent-contractor status has become so unwieldy that nobody can tell for sure anymore—but that still doesn’t make what the agency is doing appropriate or reasonable with the ABC Test.

This entire rulemaking process has revealed that what the New Jersey Labor Department is, in fact, doing is precisely the opposite of appropriate and reasonable.

“I’ve asked on multiple occasions for someone — anyone — point to me what specific reg is different than the way it was before. I’ve yet to get an example,” he said.

Apparently, acting Commissioner Jarvis failed to actually read any of the 9,500 or so public comments that were filed. Quite a few of them were from lawyers and policy experts who went on for pages and pages about all the problems this rulemaking would create, such as limiting care for disabled toddlers, making it really hard to meet provisions of the Voting Rights Act, and crippling the entire regional supply chain. You can read excerpts from a whole bunch of New Jersey’s public comments like these in a report I released this past February, titled Extremism vs. Entrepreneurism.

We’re talking about very real problems with the ABC Test rule that the New Jersey Legislature now also senses it must address by moving various bills to try and protect at least some kinds of independent contractors before the rule takes effect October 1.

As state Assemblyman Brian Bergen noted yesterday on X:

And let’s not forget this bit from acting Commissioner Jarvis in yesterday’s New Jersey Monitor:

Employers are not barred from giving employees flexible hours, Jarvis said, and law does not limit workers to a single job.

Well, that’s true too. Nothing in the law says a company can’t let the employees do whatever they want to do, whenever and wherever they want to do it.

There’s also nothing in the law that says companies can’t give every employee a million dollars, a Lamborghini and a pony. But I don’t expect that to happen anytime soon, either, especially if we’re all working multiple part-time jobs for multiple part-time bosses, like Jarvis says we all could be.

As if anyone would want to have multiple part-time jobs instead of being their own boss and running their own business.

And last but not least, my favorite of acting Commissioner Jarvis’ quotes from yesterday’s article:

“There’s absolutely some frustration because we’re swimming upstream against a river of misinformation.”

Sigh.

I sincerely hope that New Jersey’s Legislature will fix this ABC Test policy mess so that all of us can get back to working in the way that works best for us.

In addition to that, I also sincerely hope that our lawmakers will remember this accusation that acting Commissioner Jarvis hurled at us.

Jarvis should soon be scheduled for a confirmation hearing to determine whether he has the kind of integrity that we all want and deserve to see in our state’s appointed officials.

Our Legislature should hold him accountable.

For every single word.

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It turns out they’re not even close to alone.

Below are additional letters sent to Governor Sherrill since September 10. These letters are from some of the state’s top Democrats, including Senate President Pro Tempore Shirley Turner, Senate Majority Whip Vin Gopal and Senate Legislative Oversight Committee Chairman Andrew Zwicker, along with several other Democrats.

These new letters are in addition to the two dozen letters that sitting legislators previously sent to the Labor Department, raising concerns about the independent-contractor rule before the Sherrill administration finalized it. Those previous letters came from Democrats and Republicans alike, in both the Assembly and Senate.

And these new letters to Governor Sherrill are also in addition to the estimated 9,500 written public comments that demonstrated 99% opposition to the rulemaking from all kinds of professions, all across the state.

The most recent public response from the Sherrill administration is a story in today’s New Jersey Monitor, where her acting Labor Commissioner, Kevin Jarvis, claims he is fighting a “river of misinformation” from those of us who continue to oppose the Labor Department’s independent-contractor rule.

Jarvis’ comments today echoed a 2019 op-ed that then-Senate President Steve Sweeney wrote as he tried to defend his similar independent-contractor legislation against widespread opposition. Sweeney’s op-ed back then also used the word “misinformation” and compared critics (including me) to “Russian operatives trying to interfere in our elections,” because we pointed out that his bill was an attempt to copy California’s disastrous independent-contractor law.

More recently, the State of New Jersey acknowledged in writing—on pages 90 and 91 of the independent-contractor rule that Sherrill’s administration just finalized—that the 2019 bill was indeed attempting to alter New Jersey’s regulatory language “in ways that made it virtually identical” to California’s law.

Exactly as all of us said was happening, right from the start.

More Letters Sent to Governor Sherrill

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You can click through here to watch the nine-minute clip on NJ101.5’s YouTube channel if the player below stalls out on your device.

We urged everyone to contact their lawmakers, asking for a delay to the October 1 independent-contractor rule so the Legislature can have time to act.

Sources for Things I Said on NJ101.5

• Testimony by a state Assemblyman/union president trying to save his own wife’s side hustle from the looming independent-contractor rule while leaving all other professions hung out to dry

• Public comments demonstrating 99% public opposition to the New Jersey Labor Department’s independent-contractor rulemaking, with the only real support coming from unionists

• What happened when California started introducing all kinds of carveout bills, making the underlying policy mess even worse

• Report by members of the California Advisory Committee to the U.S. Commission on Civil Rights describing evidence of that state’s ABC Test law having a disproportionate, negative impact on women, immigrants, people of color and the politically powerless

• Public comment that economists submitted about how the ABC Test regulatory language is already harming women disproportionately in New Jersey

• Industry data about various male-dominated professions getting preferential carveouts right now in Trenton

• Bill that would carve out financial advisers

• Bill that would carve out golf caddies

• Letter from New Jersey Senate President Nick Scutari asking Governor Mikie Sherrill for a delay in the rule’s effective date so the Legislature can have time to ask

• Letter from New Jersey Senator Parker Space and Assembly members Dawn Fantasia and Mike Inganamort requesting the same delay from Governor Sherrill

• New Jersey Business & Industry Association form that people can fill out to request that Governor Sherrill delay the October 1 implementation date of her administration’s independent-contractor rule

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Yesterday, all three Republican representatives in New Jersey’s 24th Legislative District—Senator Parker Space, Assemblywoman Dawn Fantasia and Assemblyman Mike Inganamort—sent a letter to the governor requesting the delay.

Their letter comes three weeks after New Jersey Senate President Nick Scutari, a Democrat, wrote a letter to the governor requesting the same delay.

Space, Fantasia and Inganamort make clear in their letter that their long-standing position remains, and that they would prefer to see the independent-contractor rule entirely withdrawn.

However, they add, a delay would give the Legislature more time to act in a way that would protect independent contractors and businesses across the state.

Here’s their letter:

You can download a PDF of their letter here:

Ld24 Letter To Governor Sherrill Delay Abc Test 2026 09 15

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As a constituent who lives in Legislative District 24, I am deeply grateful to my representatives for taking this action to try and protect us all.

Unfortunately, some other lawmakers are still playing favorites, only pushing carveout legislation to protect a few hand-chosen professions. Yesterday, the New Jersey Globe reported that Senator Paul Sarlo, a Democrat who serves as Deputy Majority Leader, came out in support of a carveout bill for amateur sports officials. Previously, Sarlo supported a carveout to protect financial advisers and insurance agents.

These carveout bills are deeply unfair when hundreds of professions are in the crosshairs of this Labor Department rulemaking. More than 600 professions were harmed when California codified similar ABC Test regulatory language. That state ultimately ended up with more than 100 professions carved out.

Saving a chosen few in New Jersey is just plain wrong. Our state should avoid following California’s disastrous mistake, and instead listen to Senator Scutari and the LD24 lawmakers.

Governor Sherrill should delay the rule until July 2027 to give the Legislature time to craft a reasonable solution for all professions.

‘ABC Test Disaster’

I would also like to give a second shout-out to Assemblywoman Fantasia for her post on X yesterday about this policy problem. She minced no words, writing:

Assemblywoman Fantasia is right. Again, if California’s experience with the ABC Test has taught us anything, it’s that carveouts for favored professions are a terrible approach.

The ABC Test itself is the problem our Legislature must fix. Yes, this regulatory language is old, but the way it’s being edited, interpreted, finagled and applied is new. The ABC Test is no longer a tool being used to target actual cases of employee misclassification. It has now been weaponized against legitimate independent contractors, as the increasing number of carveout bills in Trenton makes clear.

This weaponization of regulatory language against hardworking, entrepreneurial New Jerseyans is why it is paramount for the ABC Test rule to be stopped before it can take effect October 1—and why in the coming months, our Legislature must take meaningful action to protect us all from its well-documented harms.

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All of which is why the testimony I heard several witnesses give yesterday at a public hearing in my home state of New Jersey felt so upside down, it nearly knocked me out of my chair.

The New Jersey Assembly Labor Committee took testimony on Assembly Bill 4735, which would protect amateur sports officials—and only amateur sports officials—from the state’s looming ABC Test rule that is scheduled to take effect October 1. This rulemaking threatens the incomes and careers of an estimated 1.7 million independent contractors across hundreds of professions, which is why the public comment process revealed 99% opposition to it. The administration of Governor Mikie Sherrill finalized the rule anyway, and now, various lawmakers are putting forward carveout bills, trying to save a handful of favored professions from it.

That’s what Assembly Bill 4735 is: a carveout bill. It explicitly describes the ABC Test regulatory language and then states:

“This bill provides that regardless of the statutory definition or regulatory interpretation of the ‘ABC’ test, amateur sports officials will not be considered employees under State law. “

So, given what this bill is, I fully expected yesterday’s hearing to include what we’ve seen at other carveout-bill hearings in Trenton: union representatives testifying that absolutely no professions should be exempted or have their livelihoods protected from the ABC Test rule in New Jersey. Unionists want as many of us reclassified as possible, because unlike independent contractors, employees can be unionized.

But much to my surprise, something different happened yesterday.

The first witness sat down at the mic—and turned out to be a union president arguing in favor of keeping amateur sports officials as independent contractors.

New Jersey Assemblyman Anthony Angelozzi, a Democrat from Medford, also serves as president of the NJEA-affiliated Hammonton Education Association. He described in great detail how he wants this carveout bill to pass so he can save his wife’s side hustle to her teaching job.

His wife appears to be the union’s vice president. Her side hustle as an independent contractor, Assemblyman Angelozzi testified, is helping the couple pay for their daughter’s college expenses.

He told the committee:

“When my wife and the thousands of sports officials across New Jersey take the field, they are not looking for a traditional W-2 job. They choose when and where they work, which leagues they serve, and how many games they accept. This level of control allows my wife to step back during busy seasons, to focus on our family, and she can take on extra games when her calendar clears up. Referees across our state, whether they are teachers, whether they are nurses, retirees, stay-at-home parents—all of these people depend on this exact level of flexibility to balance officiating with their full-time lives.”

Listen to his four-minute testimony for yourself:

So, yes, that testimony from a union president was unexpected.

Then the second witness sat down to argue in favor of protecting amateur sports officials’ independent-contractor status—and opened with the fact that he’s a retired member of the Teamsters union.

The Retired Teamster

Yes, you read that last bit correctly, as well: Witness No. 2 at yesterday’s hearing in Trenton described himself as a retired Teamster. I didn’t catch his name, but his testimony included this:

“I am a retired Teamster union truck driver. I delivered throughout the Garden State for 30 years. When I retired, I became an umpire, not to have a job, but just to basically umpire high school sports. I enjoy the game, and that's why I do it. I do not do this and look at it as a job. I will tell you why the bill is important: that I don't need a boss.”

Here is the retired Teamster’s two-minute testimony in full:

I know, what happened yesterday in Trenton is a lot to process for all of us independent contractors who have learned again and again over the years that everyone involved with unions will testify against us. Unionists and their multimillion-dollar nonprofit allies are pretty much the only people who support the State of New Jersey’s independent-contractor rule that is causing so much consternation for us all in the first place.

Apparently, what happened yesterday in Trenton was a bit much for the New Jersey AFL-CIO to process, too. After all the amateur sports officials, including the union brothers, testified one after the next that forcing them to become employees would harm not only their avocation, but also youth sports across the state, Eric Richard of the New Jersey AFL-CIO didn’t sit down at the mic to testify at all.

He did submit a slip noting for the record that the New Jersey AFL-CIO opposes the carveout bill, but I guess he didn’t want to risk round two of a legislator on the dais questioning the AFL-CIO’s claims about how many of us independent contractors are really misclassified in the first place.

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The Father with the Sick Baby Girl

By far, the most heart-wrenching testimony I heard at yesterday’s hearing in Trenton was the father of a daughter he called his “baby girl,” who has a rare seizure disorder.

I didn’t hear the name of this man, who said he is from Franklinville, but his testimony reminded me of what a Spanish-speaking truck driver told the New Jersey Senate Labor Committee—through an interpreter and tears—back in 2019 about how she became an independent contractor because as an employee, her boss wouldn’t give her time off to take her sick child to the doctor.

Here is the full three-minute testimony from the father who was a witness at yesterday’s hearing, where he talked about how he, too, has lost traditional jobs because he wanted to be present for his disabled daughter at the hospital:

What that man said at the end of his testimony about how this independent-contractor rule will make life even less affordable for lower- and middle-class people is also important.

Governor Sherrill has made improving affordability a top priority of her first term in office. I have yet to hear any testimony about her administration’s independent-contractor rule, from any profession, that suggests her Labor Department’s ABC Test rulemaking will do anything but make all of our lives more expensive.

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A Few Other Takeaways

There were a few other moments at yesterday’s hearing that I found noteworthy, including testimony that for at least two years now, the New Jersey Department of Labor & Workforce Development has been targeting amateur sports officials for reclassification as unionizable employees. One of the witnesses explained that they’ve tried to reason with the Labor Department, but they can’t get anywhere, and they need this legislation to make the Department back off.

Also notable yesterday was that Assembly Labor Committee Chairman Anthony Verrelli, a Democrat, seems to share the opinion of the New Jersey AFL-CIO that nothing really changes if you reclassify an independent contractor into employee status. He repeatedly asked what would actually change if these amateur sports officials—many of whom testified about loving the flexibility that being self-employed gave them—simply officiated games as employees.

In asking these questions, Verrelli was nearly parroting verbatim what the New Jersey AFL-CIO wrote in its public comment about the Labor Department’s independent-contractor rule:

“Critics often state that the flexibility of hours and work schedule afforded to workers by independent contractor status would be eliminated if these rules are adopted. That simply is not true. Workers can perform the same exact jobs they currently are performing—including app-­based delivery and transportation services—when classified as an employee. There is no prohibition of a worker holding multiple part-time jobs with several companies, performing the same work they do as independent contractors, but filing a W-2 as an employee rather than a 1099 as an independent contractor.”

It seems that Chairman Verrelli is having as much of a problem as the New Jersey AFL-CIO with the concept that having multiple part-time bosses is the opposite of having no boss at all.

Last, yesterday’s hearing made clear that everything I wrote in my submitted testimony was right on the money. In particular, I noted the disproportionate, negative effects on women that economists say New Jersey is already experiencing because of the way the state is applying and interpreting the ABC Test, and I called attention to the sexism we are witnessing in who gets, or doesn’t get, a carveout bill introduced in our Legislature to protect their incomes and careers.

Yesterday’s bill that would protect amateur sports officials—a profession that is 90% to 93% male—came after several other carveout bills were introduced to try and protect financial advisers (67% of whom are male); golf caddies (93% of whom are male); and roadside assistance drivers (95% of whom are male).

Every single person who testified yesterday about wanting to protect amateur sports officials was a man.

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The schedule lists A4735 for discussion only, meaning the committee will not vote today on whether to advance this bill.

Numerous members of the broad, statewide coalition trying to stop the state’s deeply misguided independent-contractor rule from taking effect October 1 are submitting written testimony or appearing to testify in person.

I’m one of those people, with my testimony explaining how carveout bills for just a handful of professions are not the answer to this kind of freelance busting that targets an estimated 1.7 million independent contractors across hundreds of professions.

My testimony urges lawmakers to follow the lead of New Jersey Senate President Nick Scutari in working to prevent this rule from taking effect October 1, and to stop all legislation related to independent contractors until a comprehensive review can be completed to create a reasonable approach that includes analysis of economic consequences and protection of all independent contractors.

You can download a PDF of my written testimony with footnoted sources here:

Kavin Testimony Nj A4735

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I’ve also copied and pasted the text of my testimony below for anyone who would like a more easily searchable version, with links to the source material embedded.

My Testimony, New Jersey A4735

Dear Chairman Verrelli and Members of the Assembly Labor Committee,

Thank you for this opportunity to share my strong opposition to Assembly Bill 4735, which would protect the independent-contractor status of amateur sports officials—and only amateur sports officials—from the New Jersey Department of Labor & Workforce Development’s ABC Test rule that is scheduled to go into effect October 1.

A4735 is at least the third carveout bill that has been introduced in response to the Labor Department’s wildly overreaching ABC Test rule. This carveout approach in New Jersey parallels the early stages of chaos that ultimately ensued after the State of California implemented its ABC Test law, which harmed hardworking independent contractors in more than 600 professions. Here in New Jersey, carveout bills have already been introduced specific to financial advisers, insurance agents, AAA roadside assistance drivers and golf caddies. In California, the Legislature eventually exempted more than 100 professions after seeing all the damage this kind of ABC Test policymaking caused.

Not only is the carveout approach a wholly unfair way of playing favorites among New Jersey’s estimated 1.7 million independent contractors, but the fact that everyone from high-school soccer referees to six-figure insurance brokers is seeking the Legislature’s help makes it undeniably clear that the Labor Department’s rulemaking goes far beyond targeting cases of actual employee misclassification.

The ABC Test, as it is being applied in New Jersey and as the Labor Department now intends to interpret it, weaponizes the regulatory language to threaten the livelihoods of all kinds of independent contractors, as well as the businesses we work with every day.

I respectfully request that the Legislature table this bill and all legislation related to independent contractors until at least the following three concerns have been addressed.

Concern No. 1: Possible Civil Rights Violations

On December 3, 2020, almost a year after California’s ABC Test law (known as Assembly Bill 5, or AB5) went into effect, the California Advisory Committee to the U.S. Commission on Civil Rights was created to study the law’s civil rights implications. The committee’s members held public hearings and took hours of testimony from lawmakers, subject-matter experts and independent contractors.

In December 2024, members of that committee issued a report whose key points and recommendations included the following:

• “There is significant evidence suggesting AB5 disproportionately and negatively affects women, immigrants, people of color and the politically powerless.”

• “The testimony we heard came from a significant number of different industries and circumstances, suggesting the unfavorable impact of AB5 is quite widespread.”

• “States should avoid some of the pitfalls that California fell into, including rushing into the adoption of the ABC Test and politicizing the exemption process.”

Sadly, where we find ourselves today in Trenton with A4735 is our own state’s Legislature rushing headfirst to compound the mistakes that California made.

With respect to equal treatment under the law, while A4735 would protect the independent-contractor status of amateur sports officials, it does nothing to help similarly situated independent contractors such as youth sports coaches or individuals who help parks departments and municipalities comply with the Americans with Disabilities Act (ADA). The concerns of these professions are detailed in written public comments the state’s Labor Department received.

Should A4735 become law, New Jersey would find itself with umpires at kids’ baseball games being protected as independent contractors while the youth sports coaches and ADA-inclusion consultants standing mere feet away from them, serving the same population of children at the same event, were not receiving equal protection under the law.

And beyond that point, while everyone values the continued work of amateur sports officials in our communities, it is odd for the Legislature to be prioritizing kids’ sports over some of the other deeply serious concerns raised in the estimated 9,500 written public comments the Labor Department received, including:

• The state’s Office of the Public Defender, which wrote that “court calendars will be delayed, clients will wait longer for representation, and constitutional mandates will be jeopardized”;

• Transportation-industry leaders who explained how this interpretation of the ABC Test threatens the regional supply chain;

• Translators and interpreters who said the rule will restrict their ability to help meet requirements under the Voting Rights Act, the Patient Protection Act and more;

• Therapists who called this rulemaking “potentially catastrophic” for the Early Intervention System that helps infants and toddlers with disabilities.

No legislation has been introduced to protect these kinds of independent contractors or any of the politically powerless musicians, writers and thousands of other individuals who filed written comments and testified in opposition at public hearings.

Concern No. 2: Sexism in Policymaking

As noted above, a key finding from members of the California Advisory Committee to the U.S. Commission on Civil Rights is that overly restrictive use of the ABC Test had a disproportionate and negative impact on women in California. The public-comment process that New Jersey just went through about the current ABC Test rulemaking included evidence that this same kind of harm to women is already happening in New Jersey because of the way the ABC Test is being applied and interpreted in our state.

Economists from the Mercatus Center at George Mason University compared New Jersey’s results to what other states are experiencing by doing things differently. These economists found that because of the ABC Test approach in use here, New Jersey has already experienced:

• a 3.81% decrease in W-2 employment;

• a 10.08% decrease in self-employment;

• a 3.95% decrease in overall employment;

• stark gender disparities, with women’s traditional W-2 employment having declined by 7.4% while men’s showed no significant change.

Adding further insult to that existing injury against New Jersey’s entrepreneurial women, A4735 seeks to protect amateur sports officials—a profession that is 90% to 93% male. And this bill comes after carveout bills were introduced to try and protect financial advisers (67% of whom are male); golf caddies (93% of whom are male); and roadside assistance drivers (95% of whom are male).

The New Jersey Legislature, in choosing which professions it plans to carve out so people can continue earning a living, is systematically favoring male-dominated professions over female-dominated professions.

Concern No. 3: Failure to Respect the Will of the People

Independent contractors have been filling public-hearing rooms in Trenton to standing-room-only capacity since at least 2019, trying to get the State of New Jersey to stop weaponizing ABC Test regulatory language. We have continued to urge the State to reinstate the use of the IRS Test that Governor Phil Murphy’s administration sought to eliminate based on badly mischaracterized research and data. We have also asked the State to consider regulatory language similar to what the U.S. Department of Labor and Congress recently put forward to protect independent contractors nationwide.

We, along with the broader business community, have demonstrated 99% statewide opposition to this kind of ABC Test policymaking across all kinds of professions, for all the above reasons and more. Governor Mikie Sherrill’s administration responded to us by imposing the ABC Test rule anyway, and by stating within its text that the Labor Department would not consider our detailed concerns about mischaracterized research and data, or our concerns about the economic consequences of the Department’s actions.

Our Legislature needs to protect us all now.

What Should Happen Next

A4735 and the other carveout bills that have been introduced are indisputable evidence that the ABC Test in New Jersey is now misclassifying a wide range of legitimate independent contractors as employees—a harmful practice that must end.

I strongly urge our Legislature to follow the lead of Senate President Nick Scutari and work to stop the Labor Department’s ABC Test rule from taking effect October 1. In addition, I urge you to stop all legislation related to independent contractors until a comprehensive review can be completed to create a reasonable approach that includes analysis of economic consequences and protection of all independent contractors.

Thank you again for this opportunity to be heard. I remain at your disposal to help in any way that I can.

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Here is the letter that Scutari sent to Sherrill:

Scutari’s action is good news for independent contractors like me. He is showing leadership on this policy issue in response to all the independent contractors and the broader business community who continue to stand in fierce opposition to the rulemaking, which attempts to impose the Labor Department’s own interpretation of regulatory language that defines who can legitimately earn income as an independent contractor throughout the state.

What You Can Do

I believe this makes Scutari the 25th sitting legislator—and certainly the most powerful one—to speak out publicly with concerns about the Labor Department’s independent-contractor rule. A list of the other 24 is here.

It would be helpful now for all of us to contact Governor Sherrill as well as our own three district elected officials (we each have one state Senator and two Assembly members).

Please contact them all, and tell them two things:

• You agree with Senate President Scutari and would like Governor Sherrill to delay the independent-contractor rule so that it does not take effect October 1;

• You would like to see the Legislature put meaningful protections in place—with serious input from happy, thriving independent contractors—so that we will not be misclassified as employees in the future.

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Notably, according to Gallup, that record-high figure is because of just one group of respondents:

“Democrats account for the entire increase since 2023 in Americans’ desire for unions to have more influence. Currently, 73% of Democrats hold this view, up 12 points from 61% and the highest Gallup has measured for the group. By contrast, this preference is unchanged among independents and Republicans, at 45% and 19%, respectively.”

Also notable in this year’s survey is that an important question is missing. It has actually been missing for several years now. The last time I saw it asked was in 2022, when Gallup found that while about 70% of Americans support labor unions (similar to this year’s 71%), a full 80% of nonunion employees either had no interest in joining a union or were at best neutral on the subject:

The omission of this additional question sure skews the overall narrative of Gallup’s findings, eh?

Without that additional question, we end up with politicians suggesting that because most people approve of labor unions, we need to change our laws so that more people can join labor unions. Even though most people already eligible to join clearly don’t wish to do so.

Alas, this year’s Gallup survey is what it is. And in addition to promoting Gallup’s survey, labor union leaders were all over TV this weekend reporting the AFL-CIO’s research showing that more people trust unions than trust Democrats or Republicans.

Per the AFL-CIO:

• Trust in unions exceeds trust in the Democratic Party by 20 points (52% to 32%), and workers are twice as likely to trust unions than to trust the Republican Party (52% to 26%).

• Young workers ages 18–30 trust labor unions (61%) more than twice as much as they trust the Democratic Party (28%) or the Republican Party (22%). Among young men, the trust gap is 40 points between unions and Democrats (63% to 23%) and 43 points between unions and Republicans (63% to 20%).

• The only group workers trust more than unions is their own neighbors (75%).

I found the AFL-CIO’s talking point to be a bit odd, given that surveys have also found Americans like zombies, hemorrhoids and dog poop more than they like Congress. People like traffic jams, lice and root canals more than they like Congress. Even the federal immigration agency ICE is more popular than Congress.

Which means that if the questions were posed differently, trust in unions might match or fall below most people’s feelings about dog poop, root canals and ICE.

That got me to thinking. Of course, I’d like to see Gallup bring back its question about whether non-union employees actually wish to join unions. And yes, by all means, I’m for Gallup asking how people’s feelings about unions compare to their feelings about zombies and dog poop.

But drilling down deeper, the following five additional questions would also help to shed a lot of light on what people really believe about unions, not just based on what people think unions are doing, but instead in the context of how some unions are actually behaving today.

Question 1

Do you believe the government should change regulatory language to reclassify entrepreneurial people—such as independent contractors who choose to work as financial advisers, real-estate agents and freelance writers—as unionizable employees?

This question is important because the union-led push to reclassify as many independent contractors as possible has been underway for years. Right now, there’s a bill in Congress called the Protecting the Right to Organize Act that would expand a version of California’s failed reclassification experiment nationwide. It has the support of pretty much the entire Democratic Party, while the former chairman of the National Labor Relations Board says it would unravel large segments of the economy.

Question 2

Do you believe that every person involved should get to vote on whether to join a union? Or do you believe the government should give a union control over a whole sector, such as all rideshare drivers in a state, even if only 25 percent of the drivers actually vote to join?

This question matters because that’s the exact percent required under a new Massachusetts sectoral-bargaining scheme that’s already being copied in California, Illinois and Minnesota, and that union leaders say they plan to bring to other states as well.

Question 3

Do you believe it’s OK for city officials to mandate that all people doing a certain kind of work must automatically be unionizable employees, and can no longer earn even a side income as independent contractors?

This question is in play right now in New York City and Chicago, where bills have been introduced with strong backing from the Teamsters union to automatically make certain Amazon workers, in particular, unionizable employees.

Question 4

Do you believe that union organizers should work with the Democratic Socialists of America to weaken or end capitalism? Or do you believe that unions should exist as they always have in the United States, within the system of capitalism?

This question is important because a lot of people don’t realize that for several years now, the AFL-CIO and the Teamsters, in particular, have been working hand-in-glove with the Democratic Socialists of America to try and grow union membership. This past weekend, at the Socialism 2026 conference—#TrySocialism—a DSA member on one of the panels talked about how the group is already working on “radical militant democratic unionism” right now.

Question 5

Do you believe that unions should use members’ dues to pay for political campaigns, such as the New Jersey Education Association spending $40 million in a failed election campaign that attempted to make the union president the state’s governor?

Really, $40 million is a drop in the bucket. Most people would be stunned to learn that, as recently reported in The Hill, labor unions directed more than $1.8 billion into Democratic Party campaigns and political causes during the 2024 election cycle alone.

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And I can report, after reading Osterman’s book, that this was indeed an accurate assumption.

But I also learned something important by slogging my way through this latest missive about self-employment from Harvard University Press.

The freelance-busting brigade has a central problem in their argument that, surprisingly even after all these years, they still can’t figure out how to solve.

Osterman’s book is rooted in the idea of injecting a term he coined, “disposable workers,” into the policy debate. He isn’t just talking about independent contractors with his definition; he’s also talking about some full-time employees he sees as lacking in what employment should provide, such as in-house training and the opportunity for promotions within the same company. In Osterman’s view, adjunct professors who aren’t eligible for tenure fit his definition of “disposable workers” right alongside rideshare and delivery drivers. Neither, in his opinion, are on a real ladder to success.

Whether or not his thinking is correct isn’t why I read this book. What matters to me is understanding his concept of “disposable workers,” because the terminology is similar to the term Weil coined, the “fissured workplace,” from Weil’s own 2014 book. Both frameworks are intended to give an easy label to a perceived problem that these authors believe needs to be solved in the workforce as a whole.

And as we all learned from Professor Weil, when someone like Osterman—who is professor emeritus of human resources and management at the MIT Sloan School of Management—frames a complex policy debate in two catchy words, those words can have an outsized impact. Lawmakers who believe that people being independent contractors means we have a “fissured,” or broken, workforce are also going to be inclined to believe that even the most successful independent contractor is a “disposable worker,” and then write “protective” legislation and regulations accordingly.

In fact, the power of two well-chosen words is so significant that I coined the term “freelance busting” to help swing the debate back. My two-word frame creates an entirely different understanding of what’s going on in this area of labor and employment policy. From my perspective as an independent contractor, unionists who want fewer people like me in the workforce are trying to shut down an entire pathway to achieving the American Dream.

Now, to be fair, I think both Weil and Osterman would say their books are intended to deepen our understanding of the way Americans work. I would argue with that description, and I could critique more than a few parts of Osterman’s book that made me do a double take, such as when he suggested it was better to be a valued dishwasher at his friend’s restaurant than to be a well-paid staff attorney at a law firm.

For now, I want to focus on one important point. This book, just like others of its ilk, eventually belies its intent to deepen our understanding of independent contractors and the broader workforce.

Disposable Workers ultimately just pushes the same union-backed “solutions” that are in fact radical, and that keep failing amid widespread public outrage in the real world.

‘Being a Freelancer is Desirable’

My biggest beef with Weil’s Fissured Workplace book has always been that in a nation where the vast majority of independent contractors say year after year that we prefer the way we’re working, Weil couldn’t find a single happy independent contractor to so much as mention in any of his 424 pages. Oren Cass, in his book The Once and Future Worker, took a similarly dismissive approach to tens of millions of us all across the country, prompting me to write a piece titled “Hi There. We Exist.”

The thing these tomes have in common is that their authors talk about us, without us. They come from a worldview that being a unionized employee is the ideal, so by definition, self-employed people are a lower form of worker. Happy and successful independent contractors, to them, are as mythical as unicorns. It doesn’t even occur to them to think of us as equals making a choice about how we wish to work, the same as many unionized employees choose a different path because they feel that it suits them better.

To his credit, Osterman doesn’t do what Weil and Cass did in this regard. Osterman writes about us differently in Disposable Workers. He not only acknowledges that happy and thriving freelancers like me exist, but he also writes that we can be happier than traditional employees with similar earnings, and that it would be wrong to take away our pathway to success:

“It is clear that, for many people, being a freelancer is desirable. Therefore, any policy initiative aimed at entirely eliminating this choice or making it harder to obtain this status would be misguided.”

Agreed.

Osterman also does another thing in this book that I rarely see with discourse from the freelance-busting brigade: He acknowledges that rideshare and delivery drivers, traveling nurses and other traditional union-organizing targets might be in situations more complicated than the one-size-fits-all headlines suggest.

He even acknowledges that they, too, may want their status quo as independent contractors to remain, even as some so-called “protected” employees may want their own lives to change:

“… about two-thirds of ride-share drivers are part-time and most have health insurance through another job or spouse. Accordingly, these folks may not be strong advocates for change. One can make the same point about heterogeneity among contractors, where, for example, travel nurses are happy with their situation, but in non-union settings being a contractor for a staffing firm providing building cleaners or security guards is problematic, to say the least.”

So there is at least some nuance in what Osterman writes about all of us in this book, as well as an acknowledgment that simply reclassifying us all as unionizable employees might not go over so well—a refreshing change of attitude that’s more aligned with the reality of the intense pushback we’ve all seen to sweeping and overly restrictive ABC Test legislation and regulations in recent years.

Which is what makes it so frustrating that at the end of the book, Osterman outright calls for the ABC Test to be implemented nationwide anyway.

On the one hand, he’s acknowledging that independent-contractor status is working out just fine for many of us, while on the other hand, he’s advocating for regulatory language that wipes our preferred status away.

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The Insolvable Problem

Osterman’s big policy recommendation is to implement the ABC Test through federal legislation like the Protecting the Right to Organize Act. This recommendation undoes every bit of effort Osterman makes throughout the rest of his book to try and show some respect for those of us who are happily and successfully self-employed, and who wish to remain independent contractors.

His policy recommendation also makes it evident, yet again, that no matter how the freelance-busting brigade tries to frame or reframe the current state of the workforce—and no matter what lip service they may pay us in saying they have no problem with legitimate independent contractors—their ultimate goal is to inject regulatory language that attempts to make most or all of us unionizable employees, whether we like it or not.

It’s deeply disappointing to see the way Osterman describes the ABC Test in his book. His description of this regulatory language as an “ideal solution” aligns him with everyone else in the freelance-busting brigade who turns to intellectual dishonesty in pushing this kind of policymaking.

Osterman writes:

“The ideal solution would begin with legislative clarification of how to define an employee. A straightforward approach would be federal adoption of the so-called ABC rule, already in use by over thirty states to define employee status for state employment rules and for programs related to minimum wages, unemployment insurance, and workers’ compensation. This rule makes the assumption that everyone is an employee unless the employer can prove otherwise, and to succeed, that employer needs affirmative evidence on three criteria: that the work is done without the direction and control of the employer, that the work is outside the usual scope of the employer’s business, and that the person doing the work has their own independent business or trade doing that kind of work.

“Simple and clear as that might seem, getting such a thing through Congress seems impossible…”

Well, yes, Professor Osterman, getting the ABC Test into federal law through the PRO Act has proved impossible—because there is opposition on both sides of the political aisle to what the version of ABC that’s in the bill actually does.

Here in the real world, the ABC Test is not so simple, and the only thing that’s clear is that its impacts are increasingly bad. In multiple states where this so-called “solution” has been tried in recent years, the outcomes have not been nearly as rosy as this book’s description suggests. A former chairman of the National Labor Relations Board went so far as to state that the PRO Act, as written, would “substantially unravel and change large segments of the U.S. economy.”

What Professor Osterman leaves out of his book’s description of the ABC Test, and what is so intellectually dishonest about the description he does give, is the way unionists are trying to edit and finagle and twist the ABC Test’s language so that it will hit a broad swath of legitimate independent contractors.

Is the ABC Test actually being used in dozens of states, as Osterman claims it is? Technically yes, but also, no. There is no uniform ABC Test to begin with, even between some neighboring states that use versions of it.

Just a few examples:

• Pennsylvania has the ABC Test for certain purposes, but it omits the B prong. That makes Pennsylvania’s version of the ABC Test different from, say, California’s version that has all three prongs;

• At the same time, California’s version of the B prong is different from New Jersey’s version of the B prong, so even though both those states have all three prongs, they’re not actually the same;

• California’s version—the one the federal PRO Act emulates—tanked self-employment and overall employment in California, and led to statewide legislation intended to protect working people in more than 100 professions from the ABC Test, either in part or in full;

• In New Jersey, we are all living through a regulatory-rulemaking nightmare where the state Labor Department just tried to interpret the ABC Test prongs in ways that attorneys called unprecedented and said would almost entirely eviscerate anybody’s ability to be an independent contractor at all. Lawyers called this latest variation on the ABC Test an existential threat to flexible, independent work itself. The public rose up and submitted thousands of written comments that were 99% opposed, but the state Labor Department wrote in response that, among other things, economic consequences would not be considered. The state is now proceeding with plans for an amended version of the rule to take effect October 1, notably using the same misleading word as Osterman, “clear,” in the press release: “NJDOL Adopts Clear Rules on Worker Classification...”

Those are just a few of the states involved with the ABC Test, but you get the point about how problematic this regulatory language is.

It is accurate to say that the ABC Test has been around for a long time, and that versions of it are in use in many states.

It is also accurate to say that what’s been happening in more recent years with this regulatory language is new, it is destructive—especially to women—and it is deeply unpopular with the general public. As I testified in summer 2025 before the U.S. Senate HELP Committee, those of us trying to protect our chosen careers as freelancers from this madness now see the ABC Test as regulatory language being weaponized to attack us.

There is quite simply no way to square Osterman’s call for a nationwide ABC Test with his statement that policy initiatives are wrong if they are aimed at eliminating freelancing or making it harder to be a freelancer. These stances have opposite meanings. As I wrote in my recent report about all the public comments the State of New Jersey received, we are experiencing a battle of “Extremism vs. Entrepreneurism.” Osterman is suggesting that he respects the entrepreneurs at the same time that he calls for regulatory language the extremists wield against us.

That disconnect is precisely why books with policy recommendations like Osterman’s should have no central place in the independent-contractor debate.

Yes, he acknowledges our existence in Disposable Workers. That’s unusual among the books that will sit on the same shelf as his, and it’s a welcome change. But it should not be the bar for having one’s ideas become central in this debate.

We need real solutions for the real world that stop true cases of employee misclassification while also respecting and protecting everyone’s freedom to choose self-employment. Branding even the happiest, most financially successful independent contractors as “disposable workers” creates a negative spin that will unfairly disadvantage us in the continuing policy discussion.

This book is worth reading if you want to understand how the language of the independent-contractor debate may evolve in the months and years to come, but overall, Osterman’s policy prescription is just more of the same.

Freelance busting has never been palatable in the history of the United States, and it never should be, no matter what language surrounds it.

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