'Significantly Limit Opportunities'

It's now 16 legislators—Democrats and Republicans alike—urging New Jersey's Labor Department to stop, think and respect independent contractors.

Yesterday, three more New Jersey state legislators came out publicly in defense of independent contractors, sending a letter to New Jersey Labor Commissioner Robert-Asaro Angelo that notes their “strong concerns” about the independent-contractor rule that the Department of Labor & Workforce Development has proposed.

For those of you counting at home, that now makes 16 legislators who have publicly stated their concerns about this proposed rule-making:

• Senate Labor Committee Chairman Gordon Johnson, Democrat

• Senate Legislative Oversight Committee Chairman Andrew Zwicker, Democrat

• Senate Commerce Committee Chairman Joe Lagana, Democrat

• Senate Education Committee Chairman Joe Cryan, Democrat

• Senate Majority Whip Vin Gopal, Democrat

• Assemblywoman Margie Donlon, Democrat

• Assemblywoman Luanne Peterpaul, Democrat

• Senator Parker Space, Republican

• Assemblyman Mike Inganamort, Republican

• Assemblywoman Dawn Fantasia, Republican

• Senator Declan O’Scanlon, Republican

• Assemblyman Gerry Scharfenberger, Republican

• Assemblywoman Vicky Flynn, Republican

And now, we can add to that list:

• Senate Transportation Committee Chairman Patrick Diegnan, Democrat

• Assemblyman Robert Karabinchak, Democrat

• Assemblyman Sterley Stanley, Democrat

Here’s the letter that Diegnan, Karabinchak and Stanley sent yesterday:

I especially like that line toward the end about the need to “open the door for more inclusive stakeholder engagement.”

It’s almost as if, after independent contractors descended on the State House in 2019 and testified en masse for more than four hours straight about how this kind of policymaking is just plain wrong, legislators were correct to listen to us.

And we could have avoided everything that’s happening right now if the people over at the Labor Department had simply listened, too.

The Thing About The Fish

One of the themes emerging in all of these letters—beyond urging New Jersey’s Labor Department to respect and protect independent contractors—is the idea of bureaucratic overreach.

There was a significant U.S. Supreme Court ruling about that concept about a year ago, when the justices struck down what was known as Chevron deference.

The term Chevron deference comes from a ruling back in the 1980s, in a case called Chevron v. Natural Resources Defense Council. In that case, the justices ruled that if Congress had not directly addressed the question at the center of a dispute, then a court had to uphold an agency’s interpretation of the statute as long as it was reasonable.

Last year, that 1980s ruling was overturned. The new case involved fishermen. There was a law that let the government require a fishing boat to have an observer on board, to collect data involved with fisheries management. In New England, a fisheries council tried to say that the fishermen had to pay for the government-certified observer, at an estimated cost of $710 per day.

The fishermen sued over the money, and they won. The U.S. Supreme Court ruled that Congress, in making the law, had not squarely addressed the issue of paying observers, and that the fisheries council didn’t have the authority to make the fishermen fork over the cash.

I have three points to make about this.

First, I give massive kudos to those fishermen, because fighting all the way up to the U.S. Supreme Court and winning is crazy hard. I was the lead author on the U.S. Supreme Court amicus brief that the grassroots group I co-founded, Fight For Freelancers, filed with co-signers who represented more than 275,000 Americans. And let me tell you: Learning how to write that kind of a brief, leading the group that amassed all those co-signers, and then getting the brief filed properly with the court was no small feat. The press release we issued included the following quote from attorney Jim Paretti, a shareholder and member of Littler Mendelson, P.C.’s Workplace Policy Institute, who joined Littler attorneys Maury Baskin and Michael Lotito, and paralegal Amber Christensen, in offering their expertise, pro bono, to help us say what we wanted to say in keeping with the court’s many rules:

“What Fight For Freelancers, and the broad coalition they assembled, did is truly remarkable. This is an impressive display of individuals rising up with a single voice to insist that their government respect their right to remain independent contractors.”

Second, as a professional writer, I would like a word with whichever attorney called the case that overturned Chevron deference Loper Bright. Because the name of the fishing boat at the heart of the case these guys fought all the way to the U.S. Supreme Court was Relentless. Talk about a missed opportunity.

Third—and most important—think about that Loper Bright case in the context of what many of these New Jersey legislators from both sides of the aisle are saying in their letters to the state Labor Department right now.

‘Bypass the Legislature’

What the Labor Department is trying to do, as stated in its own press release, is make new rules about independent contractors that “stem from the NJDOL’s interpretation of the statutory ABC test.”

Now, look at what the legislators are writing in these letters.

Democrats Johnson, Zwicker and Lagana wrote:

“As Chairs of the Senate Labor, Legislative Oversight, and Commerce Committees, we are supportive of the Department’s intent to protect workers’ rights and ensure a level playing field for employers across the state. However, upon reviewing the rule proposal, we are concerned that it departs from the existing statute and case law controlling worker classification.”

Republicans Space, Fantasia and Inganamort wrote:

“This regulatory action represents a clear attempt to bypass the legislature, given that similar legislation has repeatedly failed to advance.”

Republicans O’Scanlon, Scharfenberger and Flynn wrote:

“In the 2018-2019 Legislative Session, Democrats attempted to pass similar legislation but failed to advance it through the legislature due to strong opposition from freelance workers and New Jersey businesses.”

Flynn is then quoted as saying: “Bureaucrats shouldn’t control how law-abiding residents earn a living. Trenton needs to stop micromanaging workers and crushing job creators. Governor Murphy must step in and stop this overreach now.”

Democrats Diegnan, Karabinchak and Stanley wrote in the letter above:

“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.”

And beyond all of that, think about what’s happening right now in New Jersey in the broader context of the past half dozen years. Watch the five-minute opening statement I gave few weeks ago before the U.S. Senate. I explained why all the freelance busting from California to New Jersey to Washington, D.C., continues to be so deeply, horribly wrong.

I testified: “This is not targeting employee misclassification. This is weaponizing regulatory language to attack independent contractors.”

I hope we will see even more letters coming soon from New Jersey lawmakers on both sides of the aisle. Because when you’re fighting for what’s fundamentally fair and right, it shouldn’t be a partisan issue.

And in this kind of a fight, it’s important for every last one of us to be relentless.