The 2025 Battle of Trenton
Yesterday's public hearing about New Jersey's proposed independent-contractor rule was standing room only—just as in 2019.
I wrote it before, and I’ll write it again: They have learned nothing.
Yesterday, the New Jersey Department of Labor held a public hearing about its proposed independent-contractor rule. And just as in 2019, when legislators at the State House tried a similar attack on our freedom to earn a living via legislation, a standing-room-only crowd once again descended on Trenton from all across the state, voicing overwhelming opposition to this new attempt at freelance busting via regulatory rule-making.
As anticipated, no media appeared to be present, and New Jersey’s Department of Labor did not appear to livestream the hearing. They held it in the New Jersey Division of Taxation building, which is about a 10-minute walk from the State House, where all the action on the budget was keeping the press busy yesterday.
Our side was ready for that situation with a pro videographer. He captured the whole shebang with top-quality video and sound. Stay tuned for clips of that in the days, weeks and months ahead. There’s so much material to work with, it’s unbelievable—the scheduled two-hour hearing went on for more than three hours.
By my count from the front row center seat, 38 people testified against the proposal. Only 14 testified for it. I may be off by one or two (I had to go to the bathroom at one point) but our side clearly dominated the day.
The opposition to independent contractors was frustratingly predictable. Most of it, as usual, came from unions—including the AFL-CIO, Teamsters and IBEW. Others who testified against us were a representative of the union-affiliated National Employment Law Project (you may recall us crushing them in Congress last month), a couple of union-side lawyers, and a guy from the Workplace Justice Lab at Rutgers University, whose stated mission includes building unions.
Those of us who were there to protect and defend independent contractors were once again from all walks of life, including trucking, shipping, retail, insurance, financial services, freelance writing, app-based rideshare and delivery, AAA (independent contractors do a lot of roadside assistance), the New Jersey Food Council, the International Franchise Association, the Chamber of Commerce, the New Jersey Business and Industry Association, and more.
Arguably, the most important testimony for our side came from a staffer who read a letter on behalf of state Senator Joe Cryan, who is chairman of the New Jersey Senate Higher Education Committee. He’s a Democrat who added his concerns about the proposal to the warning we saw in a letter that three other Democrats—all of them state Senate committee chairmen, too—sent this month to New Jersey’s Labor Commissioner.
Overall, the testimony from our side, again and again, urged the Department of Labor to withdraw, rescind or totally rework its proposal. This was not testimony suggesting that a line or two in the regulatory language needed to be tweaked. This was wholesale rejection of what the State of New Jersey is trying to do.
I had a tabletop tripod with me, and I recorded my own 4-minute testimony on my phone. Here’s what I said:
And here are the receipts for my testimony about the questionable claims in the 2019 Governor Murphy task force report.
Below are my five biggest takeaways from everything I witnessed yesterday in that room, so everyone can be ready to fight this kind of freelance busting—not only in my home state of New Jersey, but also everywhere around the country that our opponents try to pull this nonsense next.
Takeaway No. 1
The only new line I heard from the freelance-busting brigade yesterday is that this is not “unions vs. independent contractors” policy. Several union guys uttered this line, and they sounded defensive, like kids with crumbs on their lips protesting that they hadn’t touched the cookie jar.
Their point seemed to be that this kind of regulatory language pits good people who care about employee misclassification against bad people who cheat the system. Which is, of course, silly. All of us have said, right from the start and for many years now, that companies misclassifying their employees should be held accountable.
We just disagree with the idea of hurting legitimate independent contractors, which is what these kinds of freelance-busting proposals actually do.
Takeaway No. 2
Several people testified that they would like to see exemptions added for specific professions. I understand why they are making this request, but that is the wrong strategy. Financial Services Institute General Counsel David Bellaire explained why in his testimony yesterday:
“This proposal can’t be fixed with carve-outs or classifications. When the test forcibly reclassifies licensed, regulated, small-business-owning professionals who cherish their independence, it demonstrates that the framework itself is broken.”
Bellaire was among those who urged New Jersey’s Department of Labor to “rethink, not revise” the rule.
He’s right. We already know what will happen if the state starts to grant exemptions to some professions but not others, because that process—if you can even call it a process, as opposed to cherry-picking winners and losers—continues to be a nightmare out in California. So much so that a state Assemblyman is calling on the U.S. Department of Justice to investigate, and yet another lawsuit was just filed, citing discrimination.
Takeaway No. 3
Several “real people” who actually earn a living as independent contractors spoke for our side—quite eloquently and powerfully. One of the most impressive speakers yesterday was Sharon Waters, a freelance writer.
I was able to record her testimony on my phone while sitting in the front row of the gallery. The sound on this video isn’t great, but if you turn up your volume, you can hear every word:
Compare what Sharon said to the one “real person” the unions brought for their side: a man who spoke Spanish and testified with a translator. He said he worked in the construction industry, and he described being misclassified and abused on the job, all of which sounded horrible.
However, he also described in his testimony how the New Jersey Department of Labor was already investigating his case—a fact that, well, made our point.
We keep saying it is possible to stop real cases of misclassification without imposing horrible regulations that hurt legitimate independent contractors like Sharon. His testimony verified that we are correct in our assessment.
Takeaway No. 4
The gal who testified from the National Employment Law Project played a card that we didn’t hear from that perennially problematic organization last month in Congress: She invoked the bogeyman of Project 2025. She spit out the words as if they were magic beans, somehow able to grow support for what was clearly a deeply unpopular proposal.
Suffice it to say, her testimony fell flat. Probably because we can all read, and the two pages in Project 2025 that are about independent contractors say that our lawmakers should protect everyone’s freedom to be self-employed.
Which is, of course, what most of the country wants, across all kinds of demographics and party lines. Study after study shows this is an 80/20 issue, and NELP is on the wrong side of it.
Takeaway No. 5
Last, we heard the old chestnut that this policy issue is a battle between corporations and workers—which continues to be laughable, given that 80% of independent contractors say year after year that we prefer this way of earning a living, and we now regularly show up at hearings like this one to speak for ourselves.
What this tired testimony told me is that the freelance busters are going to continue trying to spin the narrative in a way that denies the plain truth of what we can all see with our own eyes at these hearings: The modern workforce stands squarely on the side of protecting everybody’s freedom to earn a living in whatever way we want. We don’t think in terms of traditional jobs vs. union jobs vs. independent contracting vs. franchising. We think in terms of keeping all our options open—and we want laws that protect those options for whenever we might choose to exercise them throughout our lifetimes.
That widespread, commonsense public opinion is why, in state after state, and in congressional hearing after congressional hearing, the freelance busters keep having their butts handed to them. They are getting shellacked worse and worse every time they try this nonsense, which is why more and more lawmakers are standing with us instead of them.
We can keep doing this all across the country if that’s what the freelance busters want to do heading into election season after election season, but the endgame is going to be them losing even more support for the unions. They’re digging their own grave with this deeply misguided strategy to try to fix their all-time low membership numbers. They’re making all of us see them not as an option we aren’t currently choosing, but instead as our relentless, remorseless attackers.
At some point, the freelance-busting brigade will learn that they need to stop threatening everyone’s fundamental freedom to earn a living.
Until then, we will be ready for them, no matter where they try to target our livelihoods next.
You go, Kim!
I think I sent an objection to the new rules a while ago, but I can’t find it, so I sent this yesterday (.
“Ten percent of the US workforce works full-time as independent contractors. Another 20 percent works part-time, whether to supplement low-income employee jobs or because they have responsibilities or disabilities that don't allow them to take full-time work. New Jersey’s workforce is likely to have a similar breakdown; the state should support such a large portion of its workforce, not restrict it. Instead, your proposed ABC test and accompanying rules explicitly aim at strangling self-employment. If you’re successful, you could put most independent workers out of work entirely, with catastrophic effect on families and local economies.
The most dangerous of the test’s rules is prong B. It bans us independent contractors from working in our employers’ core activities, but that’s exactly where our employers need us to work. Put starkly, prong B will end the use of many independent contractors in NJ. We’re necessary. We’re engineers, architects, project managers, retail and wholesale consultants, internet designers, writers and artists, researchers. We provide critical expertise employers need for a short time, expertise they can’t survive without. Preventing us from working hurts your employers and your state’s economy as much as it hurts us. Your proposal undermines NJ employers’ chance of success; it dares them to succeed in spite of you.
The factors you propose as guidance for regulators in implementing your rules are equally distressing. They do the opposite of what you say you intend. Your lists of factors replicate the worst features of bureaucratic regulations by providing countless ambiguities in how agencies and stakeholders can meet the rules. Ambiguities like yours are widely known to confuse regulators and give unscrupulous employers numerous loopholes to escape regulation. They’re typical of why the ABC test was devised in the first place and why it has been adopted in other ways across the country (the test is used primarily to determine eligibility for a single benefit, usually unemployment, but not for overall employment status as you’re doing). What’s more, your recommendations on using the factors make no sense. The factors are described as helping courts and regulatory agencies determine workers’ status, but you forbid those same courts and agencies from using the factors to determine status. What?!
Simply put, your confusing implimentation of the ABC test is just plain wrong. It will make NJ as much of an embarassment as California is. Contrary to what’s commonly thought, that state’s embarassment didn’t flow from its approach to misclassification. Wage workers in California had already been deemed employees before the ABC test was adopted. Rather, the embarassment resulted from applying the ABC test across the full range of workers employed as independent contractors, just as you’re doing here. Your approach is equally flawed and will likely damage NJ’s reputation as much as California’s has been.
Why NJ won’t be more reasonable about independent contractors and other independent workers is beyond me. I understand why unions are hostile towards us. We take their jobs sometimes and they have no answer to that. It's a serious problem for them, but it's a problem they could solve themselves by adopting a more liberal understanding of solidarity. We’re workers too, and we’ve shown we’ll join with unions in coalitions. I myself am in a CWA union that even has a unit for independent workers. There are other approaches, as well, such as making independent workers eligible for the same basic worker benefits as employees. States jealously guard the benefits for no good reason that I can see. This confuses and demoralizes workers, forces regulators to be gatekeepers instead of facilitators, unnecessarily increases the risk of working independently, and causes most misclassification snafus. Just give us the benefits and make the great majority of misclassification problems go away.
All in all, attacking us is going in the wrong direction. New Jersey is wrong to do it, hurting us and its economy by doing it.”
Let me start by saying that we appreciate what you are doing for all independent contractors in nj. Am an independent trucker myself . What do you think is going to happened at the end