About a week ago, New Jersey Governor Mikie Sherrill went on television and said her Labor Department’s new ABC Test rule for independent contractors “simply codifies the rules and regulations that are already in place. … If you are an independent contractor today, you will be an independent contractor tomorrow.”
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.
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.