Retract This Article

NJ Spotlight News published quite the tale by Brenda Flanagan about New Jersey's independent-contractor proposal. Sadly for them, I have video of the truth.

One of the most frustrating aspects of the war to stop freelance busting is that independent contractors constantly have to deal with false information being reported about us in the press.

There was the time, for instance, that New Jersey state Senate President Steve Sweeney wrote an op-ed in the Asbury Park Press comparing us freelancers to Russian operatives trying to interfere with elections.

And then there was the time The New Republic insinuated that by standing up for our freedom to be independent contractors, we had all fallen victim to some nefarious plot the Koch brothers had hatched.

The latest whopper in this cavalcade of media distortion comes from Brenda Flanagan, an Emmy-award-winning senior correspondent with NJ Spotlight News. She wrote this story that was published Wednesday about New Jersey’s proposed independent-contractor rule:

Let’s take a spin through Flanagan’s story, which I contend is an inimitable display of wholesale bias and intentional mischaracterizations.

But you should judge for yourself.

Fact or Fiction?

Flanagan’s opening paragraph states:

“Many of New Jersey’s 1.7 million independent contractors have expressed alarm over the state Department of Labor’s proposed new rule codifying wage and employment law enforcement, saying it will especially impact a wide range of gig workers.”

Right out of the gate, there are multiple problems with this reporting.

The description of the Labor Department’s proposal as “codifying wage and employment law enforcement” is, at best, highly debatable. The Labor Department itself, when it proposed this independent-contractor rule, stated that it is attempting to codify its own interpretation of regulatory language.

More than a few people—including lawmakers on both sides of the political aisle who know a thing or two about codifying regulatory language—are crying foul about this proposed interpretation:

• Democratic state Senators Gordon Johnson, Joe Lagana and Andrew Zwicker, who are chairman of the New Jersey Senate Labor, Commerce and Legislative Oversight committees: “[U]pon reviewing the rule proposal, we are concerned that it departs from the existing statute and case law controlling worker classification.”

• Republican state Senator Parker Space and Assembly members Dawn Fantasia and Mike Inganamort: “This regulatory action represents a clear attempt to bypass the legislature, given that similar legislation has repeatedly failed to advance due to widespread opposition from independent contractors, small business owners, and the communities they serve.”

• Democratic state Senator Patrick Diegnan, Jr. and Asssemblymen Robert Karabinchak and Sterley Stanley: “The question of how to classify workers has been considered repeatedly by the Legislature, and similar efforts to change the standard through statute have not gained approval.”

• Elissa Frank, vice president of government affairs for the New Jersey Business and Industry Association: “These changes are not codification, as the Department asserts. They are transformation.”

• Attorney Richard Reibstein of Troutman Pepper Locke: “The proposed regulation pertaining to Prong A departs in a dramatic manner from virtually every other test for IC status under federal law and the laws in every state — and unless clarified in the final version of the regulation, would not merely tilt the balance in favor of employee status and against legitimate ICs but rather lead to the elimination of all ICs in New Jersey.”

No need to tell NJ Spotlight’s readers anything like that, I suppose.

Now, about Flanagan’s description of “many” independent contractors expressing alarm: What actually happened is that testimony at the public hearing was 3-to-1 against the state’s proposed independent-contractor rule. I know this because I was actually there, and I heard a number of independent contractors testify with great quotes that Flanagan could have chosen to show NJ Spotlight’s readers why we are all trying to stop this proposed rule-making.

One such person who testified was Tema Steele, who has been an independent contractor for 44 years. She said things like: “When I started with New York Life, I was recovering from a painful divorce, raising two young sons—just 2 and 4 years old. This profession gave me what I needed most: a flexible, rewarding and meaningful career as a business owner to provide for my family.”

Below, the woman in the pearl necklace shown testifying is Sharon Waters, a freelance writer who talked about how being her own boss allowed her to spend time with her mother, who was hospitalized for 24 days in 2020, and how she could again spend time with her in 2022, when another hospitalization ended with hospice care.

Testimony given by several other independent contractors also appear in this one-minute ad made by the campaign Save Independent Work. You can hear the quotes for yourself:

None of those quotes were deemed worthy for inclusion in Flanagan’s story.

Instead, in the second paragraph of NJ Spotlight’s story, Flanagan quoted a witness who testified against independent contractors—without telling readers that he was with an organization whose work includes promoting unions:

“The department took more than three hours of testimony on the proposal at a June public hearing, where Rutgers Workplace Justice Lab analyst Jake Barnes described the rule’s intent: “…to enforce the law and not play whack-a-mole with employers trying to skirt the law and obligations by hiding behind regulatory uncertainty.”

In fact, what Barnes said was a questionable characterization of the proposed rule’s intent, given all the harm to independent contractors that similar policymaking has already caused.

Flanagan then wrote:

“Most unions and workers rights groups have supported the proposed rule, noting it prevents wage theft and creates a level playing field, while discouraging companies that cut corners.”

Workers rights groups. That’s an interesting description.

The independent contractors whose incomes and careers are in the crosshairs of this proposal are people who work for a living—while exercising the freedom to be our own bosses that has existed since the day this nation was founded. Fewer than one in 10 of us say we’d prefer a traditional employee role. Certainly, these unions and so-called “workers rights groups” do not represent us or the way we prefer to work.

What Flanagan should have written, instead, is “unionizable employee groups.” Because the only witnesses who testified in support of this proposal at June’s public hearing were either employed by unions, or affiliated with organizations that have strong union ties.

I listed them by name and organization in the 26-page written public comment that I filed on behalf of Fight For Freelancers. Barnes is at the end of this list:

• Eric Richard, legislative director for the New Jersey AFL-CIO

• Michael Broderick, president of Teamsters Local 469 and general executive board member of Joint Council 73 for the Teamsters

• Bernie Corrigan, president of the International Brotherhood of Electrical Workers Local 102

• Abby Adams, government affairs director for the Associated Construction Contractors of New Jersey, which represents and promotes the interests of the union construction industry

• Debbie White, president of Health Professionals and Allied Employees, the largest health-care union in New Jersey

• Jennifer Mancuso of the New Jersey Laborers Union, or LIUNA

• Brandon Fishbaum of Carpenter Contractor Trust, which supports union contractors

• Paul Prendergast with the Eastern Atlantic States Regional Council of Carpenters, a council of the United Brotherhood of Carpenters and Joiners of America union

• Alan Schorr of the National Employment Lawyers Association, whose Washington, D.C. office address is c/o AFL-CIO 815 Black Lives Matter Plaza NW

• Joseph Niver of Make the Road New Jersey, whose staff is organized with the United Auto Workers Union 2320

• Maya Pinto of the National Employment Law Project, a union-backed think tank, who previously worked at the Service Employees International Union

• Jake Barnes of the Workplace Justice Lab at Rutgers University, whose stated mission on its homepage includes support for unions

That public comment I filed also urges careful scrutiny of the testimony given by numerous people listed above, including Barnes. He testified at the hearing: “A 2018 Berkeley Labor Center study estimated that between 12.4 and 20.5% of New Jersey's construction workforce was either misclassified as contractors or paid off the books.”

But this data, according to a footnote in a 2022 Berkeley Labor Center report, in fact comes from a 2020 study supported by the United Brotherhood of Carpenters and Joiners of America, one of North America’s largest building trades unions.

And We’re Only at Paragraph Three

The third paragraph in Flanagan’s NJ Spotlight story goes on to state, as if it’s fact:

“The proposed rule clarifies a three-prong test used to classify workers as either independent or as employees of a company that would then have to also pay them benefits. The department said it is targeting companies that dodge employment laws.”

Clarifies is an interesting word choice to characterize the proposed rule, given that—let’s say it again for the people in the back—numerous attorneys along with this attorney and a slew of Democrats and Republicans in the New Jersey Legislature say that what the Labor Department is attempting to do goes way beyond mere clarification. It would, as Democratic state Senate Majority Whip Vin Gopal and Assemblywomen Margie Donlan and Luanne Peterpaul wrote: “hurt independent contractors.”

A bunch of industry experts who filed written public comments expressed similar sentiments. As yet another example, there’s this line from the public comment filed by the American Council of Life Insurers: “Contrary to the assertions in its Summary, the Proposal transforms the state’s current standard into the most restrictive in the nation.”

No room for Flanagan to include anything like that in her story either, I guess.

Instead, Flanagan barrels on and describes construction worker Diego Visero, who, she writes:

“… testified that he suffered employer abuse, stating through an interpreter, ‘We are constantly facing pressure to work faster and work harder — without breaks. We work many hours and don’t receive overtime pay, or even full pay.’

“Unscrupulous developers and contractors too often force construction employment into the underground economy, costing the public lost payroll taxes,” said Jennifer Mancuso, director of government affairs for NJ LECET, a labor-management cooperative. “Cutting workers off from essential benefits like health care, workers comp, social security and unemployment insurance.”

What Flanagan failed to tell NJ Spotlight’s readers is that Mancuso and Visero were at the hearing together. He sat next to her to testify, and she introduced him. She testified that her union “strongly supports the Department’s proposed rules,” and she ended by saying: “At this point, I wanted to turn it over to Diego Visero to talk about his personal experience with misclassification.”

Visero then testified. And he added an important fact that Mancuso left out of her testimony, and that Flanagan left out of her NJ Spotlight article: “The DOL is investigating my workplace for numerous violations, including misclassification."

In other words, Visero’s testimony made clear that no rule change to independent-contractor policy is necessary to investigate the problems he says he’s experiencing as a misclassified employee. The Department is already investigating his claims.

Here’s the video of Visero’s translator at the public hearing, documenting that testimony in full:

And Then, Flanagan Cited Me

For the sake of everyone’s time, I’ll skip ahead here in Flanagan’s story to the part where she describes me. This is what she wrote about me and my testimony at the public hearing:

“You’re threatening to wipe out incomes and careers, and you’re admitting you’ll create no new jobs for us!” testified freelance writer Kim Kavin of Califon. “It disproportionately and negatively impacts women, immigrants, people of color and the politically powerless.”

Now, it’s true that I’m a freelance writer (and editor)—but I wasn’t there representing only myself, the way Flanagan makes it appear. And I never stated my home mailing address.

While Flanagan fully reported how the union-side sources introduced themselves at the public hearing—such as “Rutgers Workplace Justice Lab analyst Jake Barnes”—she and the editing team at NJ Spotlight omitted the way that I introduced myself:

But let’s put aside any semblance of fairness and accuracy, or the thousands of other independent contractors I was there to represent that day as a leader of the nonpartisan, grassroots coalition Fight For Freelancers.

Let’s just move on to what Flanagan quoted me as saying.

First, according to her story, I said:

“You’re threatening to wipe out incomes and careers, and you’re admitting you’ll create no new jobs for us!”

The use of an exclamation point is a choice that a writer makes. It indicates that someone is yelling or screaming.

Was I yelling or screaming?

Flanagan then quoted me as continuing right into the following sentence, as if I said it immediately after that previous quote, and as if it were my personal claim with no citation: “It disproportionately and negatively impacts women, immigrants, people of color and the politically powerless.”

Is that an accurate characterization of what I said, and of when and how I said it?

Flanagan then went on to write:

“Stemming from Gov. Phil Murphy’s labor task force recommendations five years ago, the roll-out has been greeted by opposition on both sides of the legislative aisle.”

Here is the Report of Governor Murphy’s Task Force on Misclassification, which, as you can see on its cover, was issued in July 2019 (that’s six years ago, not five).

Please show me where, in that report’s recommendations, it states anything about the New Jersey Labor Department proposing this interpretation of regulatory language to define independent contractors.

Spoiler alert: nowhere.

Facts Matter

I earned a journalism degree from the University of Missouri. Which, a fair number of people said when I graduated back in 1994, was among the best journalism schools in the country.

Unlike Flanagan, I have never won an Emmy award. She appears to have won hers in 2003 as part of a team of more than a dozen people.

What I have won are several dozen awards that include two FOLIO: Eddies (one for a nine-part advocacy series about this policy issue in Entrepreneur), the Donald Robinson Prize for Investigative Journalism (for this Sunday page one story in The Washington Post that led to action by the U.S. Department of Agriculture) and the 2021 Exceptional Service Award from the American Society of Journalists and Authors for “leadership and heroic efforts on behalf of freelance writers in the fights against AB5 and the PRO Act.”

One reason that my writing tends to resonate with readers is that I’m a big believer in the idea that facts matter. Sure, everybody—including me—makes an occasional mistake. Heck, that’s why so many publications pay me to edit other writers’ work. I earn a good portion of my living as a freelance editor who catches those kinds of mistakes.

But making an occasional mistake is not the same as being so sloppy or biased that your work appears to be intentionally misleading. What Flanagan did in this article, back in the years when I worked for daily newspapers, would have landed a reporter on probation or gotten her fired.

It’s a serious disservice to readers that this type of coverage keeps getting published about the independent-contractor policy issue. In fact, this type of coverage is one of the big reasons that all the video clips above exist in the first place.

Prior to the public hearing, when I realized New Jersey’s Labor Department was not going to live-stream the testimony—when I learned that I would not have easy access to video that could prove what actually happened at the public hearing—I mentioned the lack of documentation to a bunch of people I’ve gotten to know during the past six years of trying to stop this insanity at the state and federal levels alike. The folks at Save Independent Work were kind enough to send a pro video guy to capture the entire hearing. They then used the footage to make things like the one-minute ad that I included above, and they gave me access to the raw hearing footage, to do whatever I think is necessary with it.

This Substack is exactly the kind of thing that I anticipated being necessary.

NJ Spotlight should retract its story, and whoever edited it should join Brenda Flanagan in issuing a formal, public apology.

After which I will be happy to sit down with Flanagan for a real interview, if she is willing to do some actual journalism with regard to this policy issue.

I’ll even bring the video camera myself.