Circular Report-Writing
The public comment NELP filed about New Jersey's proposed independent-contractor rule is a masterclass in questionable research.
In April 2023, I testified on a panel before the U.S. House Subcommittee on Workforce Protections. There were six of us at the witness table that day, including a woman named Laura Padin. She is director of work structures at the National Employment Law Project and, according to her bio on NELP’s website, a proud member of United Auto Workers Local 2320.
NELP is a multimillion-dollar nonprofit that regularly submits testimony and research about independent contractors to state and federal policymakers. What’s in this research matters. Lawmakers and regulatory agencies routinely cite NELP’s reports when they target independent contractors. NELP is a major driver of freelance busting across America.
All of which is why, in May 2025, when Padin and I again were witnesses before that same U.S. House subcommittee, I was prepared to expose the kind of circular report-writing that NELP frequently does—a tactic NELP is yet again using in the public comment it just filed about New Jersey’s proposed independent-contractor rule.
NELP is running its standard setup play right now in Trenton for future attempts to restrict independent contractors not only here in my home state of New Jersey, but also in other states and nationwide.
In NELP’s Own Words
One of my goals, when I was on Capitol Hill this past May, was to make sure the public record included the way NELP does its research. This is a tricky goal to achieve, because witnesses only get a few minutes to answer questions. We have to make our big-picture points by building on our previous answers, one Q&A exchange after the next.
I understood this limitation when I said the following in response to a question. It sounded like I was stating basic information, but I was actually throwing out bait, in the hopes that Padin would take it during her next turn at the mic:
If you want to verify what I said, here’s the Newsweek article that Padin’s boss wrote. The link from the words “2020 analysis” still goes to this 2009 GAO report, whose first paragraph says exactly what I testified. Its research is as old as 1984.
This next clip is Padin’s response to what I said. She swallowed the bait like a starving grouper, and did exactly what I had hoped she’d do:
Padin then went on to talk more about how Congress should trust NELP’s research because it’s based on the federal “Planmatics study” she cited, as well as state-level reports about misclassification.
Which teed me up to say what I had prepared about the way NELP does its research, with circular report-writing:
If you want to do a deep dive into that questionable 40% statistic in New Jersey’s report, and learn more about what is, and is not, in the federal Planmatics study (especially as it pertains to New Jersey’s construction industry), I detailed it here.
But suffice it to say, the lack of any discernible evidence to support the key statistic in New Jersey’s report didn’t stop NELP from using it as a source for one of NELP’s newer “state-level” studies, which NELP is now using to push freelance busting in other states and in Congress.
Now that you understand how this circular report-writing works with NELP, you realize that whatever NELP files in any given state matters to every single independent contractor nationwide. The public comment that NELP just filed in New Jersey could very well end up as a footnote in some other NELP research next.
So, I took a hard look at the public comment NELP filed with the New Jersey Department of Labor & Workforce Development. Here it is in full:
Below, I detail a few sections of this public comment that seem destined to become some of NELP’s all-time greatest hits in the circular report-writing hall of fame.
NELP’s New Jersey Comment
NELP has numerous people submitting information to New Jersey’s Labor Department as part of the current rule-making process. At the public hearing in June, one of the witnesses who testified was Maya Pinto, a NELP senior researcher and policy analyst who formerly was with the Service Employees International Union.
The written public comment that NELP just filed in New Jersey is written by Sally Dworak-Fisher. According to her bio on NELP’s website, she’s a staff attorney as well as a proud member of United Auto Workers Local 2320.
The first citation of research in NELP’s public comment follows this passage:
“As the Economic Policy Institute (EPI) has shown, within occupations, workers classified as independent contractors suffer compensation penalties of more than 20 percent relative to their employee counterparts because they do not get paid overtime, paid leave, workers’ compensation, and they lose employer contributions to health insurance and retirement plans.”
The Economic Policy Institute’s chairwoman is Liz Shuler, president of the AFL-CIO. I recently wrote about this Economic Policy Institute research here, while breaking down the public comment that EPI filed in New Jersey. EPI’s methodology section uses the word “estimate” not once, not twice, but eight times about how the study was conducted. And yet, in the public comment that EPI filed with the State of New Jersey, it presented this information as fact.
So did NELP, as you can see in the above passage. The same negative research about independent contractors, which is based on a bunch of EPI’s estimates, is presented to the State of New Jersey as fact.
The next page of NELP’s public comment cites data not from New Jersey, but instead from Washington, D.C., and California (not unlike how Human Rights Watch based its New Jersey public comment in part on a survey of people outside New Jersey).
This section of NELP’s public comment goes on to cite a “national study of digital labor platform workers,” referring to this missive from the Economic Policy Institute. Which, if you read its methodology breakdown, is based on just 288 gig workers—alongside more than 4,000 traditional employees. Talk about stacking the data deck. And the surveys of these gig workers were done in May 2020, at the height of the pandemic when everything about app-based work was wildly skewed.
Next up, NELP’s public comment states:
“… millions of workers nationally, with untold thousands in New Jersey among them, likely suffer poverty wages and degraded working conditions related to their misclassification as independent contractors.”
The footnote for that claim cites this study that NELP put out in October 2020—and that in turn uses the questionable 2019 New Jersey report as one of its sources. Now it’s coming around again in a 2025 New Jersey public comment.
Yes, indeed, that’s exactly the kind of circular report-writing that I testified about before Congress.
There’s also this, on page four of the NELP public comment just filed in New Jersey:
“… a 2009 report by the Government Accountability Office estimated that independent contractor misclassification cost federal revenues $2.72 billion in 2006 dollars, amounting to more than five billion dollars today.”
The citation for that claim is the same GAO report that I testified about before Congress, the one that NELP’s president called a 2020 analysis in Newsweek, but that’s actually dated 2009 and based on data as old as 1984.
And yes, that’s the same GAO report that Padin got all feisty about when she told Congress it’s not the basis for NELP’s claims about the scope of employee misclassification. Go back and watch that clip again. She stressed to lawmakers that NELP uses the federal Planmatics study for that data.
Lawmakers should definitely read that Planmatics study, especially page 168 of the PDF (listed as page B-30 of the actual report).
It states:
“A 1994 Coopers and Lybrand report drew upon earlier federal studies to estimate the number of misclassified workers and assess their impact on federal tax revenues. The primary source for their report was an IRS survey of 3,000 employers based on data from the 1984 tax year.”
Yup. It’s that same old 1984 data showing up in the federal Planmatics research, too.
I could go on, but I think you get the point about how to read the public comment that NELP just filed in the State of New Jersey.
The Gang’s All Here
Six of the 26 public comments filed in New Jersey in support of the independent-contractor rule came from:
NELP
The Economic Policy Institute
The AFL-CIO
The Public Justice Center (whose partners include NELP and the AFL-CIO)
Make the Road New Jersey (which filed two comments, and whose staff, like NELP’s, is organized with United Auto Workers Local 2320)
On the side of the 99% opposition in the written public comments, attorneys say what New Jersey’s Labor Department is trying to do “almost entirely eviscerates” any chance of establishing independent-contractor status, is “fundamentally flawed from a legal perspective,” is “an existential threat to flexible, independent work,” and “warp[s] the explicit statutory language and court precedent.”
Republican legislators say it’s a “clear attempt to bypass the legislature,” in a way that Democratic legislators are concerned “departs from the existing statute and case law.”
The state’s own Office of the Public Defender says this proposed rule will jeopardize constitutional mandates. Translators and interpreters say it will make it impossible to satisfy requirements of the Americans with Disabilities Act, the Voting Rights Act and the Patient Protection Act. The New Jersey State Bar Association says it creates so many scenarios for potential problems that “examples are both easy to provide and too many to list.”
I look forward to reading NELP’s next writeup about independent-contractor policy, if not in some report the group submits to a government body, then maybe in an upcoming edition of Newsweek.
And then, I look forward to testifying about it wherever this war on independent contractors ends up heading next.
Because with NELP and freelance busting, it’s always around and around we go.