The Escalation
In California, lawmakers decried the AFL-CIO's influence over independent-contractor exemptions. In New Jersey, the AFL-CIO wants no new exemptions at all.
Back in September 2019, when the California Senate was debating whether to pass that state’s ABC Test freelance-busting bill, a Republican senator named Jeff Stone got on the mic and held up a document for everyone to see.
He then asked a question about that document for the whole world to hear, about the way that only certain professions, but not others, were receiving exemptions from California’s Assembly Bill 5 and the ABC Test regulatory language at its core:
Senator Stone’s accusation—that the AFL-CIO in California was inappropriately involved in deciding which independent contractors got exemptions to keep their incomes and careers—fell on deaf ears in Sacramento that day.
As the California Globe reported:
What happened with that ABC Test law in California’s Legislature in 2019 was eerily similar to what is happening right now with an ABC Test rule that New Jersey’s Department of Labor & Workforce Development just adopted, and that is scheduled to take effect October 1.
But in New Jersey, the AFL-CIO is adding a new element to the influence it is attempting to exert in the deepest, darkest bowels of state government.
The unionists in New Jersey are trying to crank up the freelance-busting extremism beyond what they achieved in California. They’re trying to stop any professions from receiving new exemptions at all.
No New Exemptions
To understand the scale of the escalation that’s happening in my home state of New Jersey, let’s start by making the baseline from California clear. There are three things that New Jersey’s Labor Department is doing as variations on the same theme that we all saw play out in California.
These three things should, in and of themselves, make everyone’s stomachs turn:
Basic facts and accuracy are being ignored. New Jersey’s public-comment process revealed all kinds of mischaracterized data and research being used to prop up ABC Test policymaking—including in the Report of Gov. Murphy’s Task Force on Misclassification that the Labor Department itself cited when it proposed the current rulemaking. Governor Mikie Sherrill’s Labor Department responded in writing about the mischaracterized data, stating: “The commenter’s critique of the work of 2019 Misclassification Task Force Report is not relevant to this rulemaking.”
Facts and accuracy are irrelevant. Same as California. Check ✔
Economic consequences are also being ignored in New Jersey, where Sherrill’s Labor Department responded to public comments about the ABC Test’s current harms and its disproportionate, negative impact on women by writing this in the new rule: “The Department is not obligated to address economic research on the impact of the ABC test…”
Economic consequences don’t matter. Same as California. Check ✔
Pleas from independent businesses are also falling on deaf ears in New Jersey, where Sherrill’s Labor Department sided against the 99% public opposition to this ABC Test rule. Sherrill’s acting Labor Commissioner—a former employee of the New Jersey AFL-CIO—even gave an interview where he tried to spin more than 9,000 opposition comments down to only 250, and where he tried to spin a single public comment filed by a union up to 1 million.
The will of the people is immaterial. All that matters is what the union bosses want. Same as California. Check ✔
There is simply no arguing the fact that in New Jersey’s Labor Department, with the adoption of this independent-contractor rule, we are witnessing government of, by and for the union bosses—but unlike in California, where the union bosses would ultimately see more than 100 professions exempted from the freelance-busting ABC Test law, New Jersey’s AFL-CIO says it now wants no new exemptions from the freelance-busting ABC Test rule.
Zippo. Zero. None.
All kinds of self-employed professionals in New Jersey must now face the threat of financial ruin unless they are lucky enough to be exempted already, like the real-estate agents whose lobbyists got a law specific to their profession passed over the winter. The New Jersey AFL-CIO wants as many independent contractors as possible to remain in the line of fire. This includes insurance brokers, lawyers, translators, therapists—everyone.
On June 3, the New Jersey AFL-CIO blasted out an email making this extreme position clear:
You’d have to be a baby doe lost in the woods to believe that the unionists hanging around the halls in Trenton just now came up with this idea of interpreting the ABC Test in ways that nobody can definitively pass it, and then insisting that no professions get an exemption from it.
Ensnaring everyone—even high-earning professionals who are legitimately self-employed—has been part of these unionists’ freelance-busting plan for years.
Who’s Responsible Here, Indeed
In 2018, unionists in Congress led in part by New Jersey Democrat Donald Norcross wrote a report that recommended, among other things, redefining everyone as employees across entire industries. Whether or not people were legally operating independent contractors was irrelevant; in fact, the unionists went so far as to suggest that if a company failed to provide contact information for a lawyer who could contest every worker’s independent-contractor status, then the workers should automatically be classified as unionizable employees.
One year later, in 2019, we all watched the AFL-CIO in California get the freelance-busting ABC Test bill into law.
That law took effect on January 1, 2020. Within a year, after all kinds of public outcry and chaos, more than 100 professions had been granted exemptions from the ABC Test law—a fact that clashed mightily with the unionists’ plan to capture every type of independent contractor they could.
So, in 2021, the philosopher king of freelance busting, Professor David Weil, co-wrote a paper to push some new options. That paper’s title is, “Who’s Responsible Here? Establishing Legal Responsibility in the Fissured Workplace.”
This paper lamented what happened with exemptions in California and then laid out the zero-exemptions tactic that the New Jersey AFL-CIO is now attempting to deploy in my home state.
None of this should surprise anyone. Weil, you may recall, is the unionist who became federal Wage and Hour Administrator during the Obama years. He tried to use his appointed position to interpret independent contractors nationwide out of business, much as his former colleague Robert Asaro-Angelo used New Jersey’s Labor Department to set in motion the current rulemaking that attempts to interpret independent contractors statewide out of business.
Weil’s 2021 paper talks about how a law similar to California’s should be the next step in this fever dream of a nation with almost exclusively unionizable employees—but this time, the law should allow zero exemptions for any professions.
The 2021 paper outright acknowledges that certain independent contractors have all the professional leverage we need to succeed as our own bosses. It then goes on to suggest taking steps that would wipe us out anyway, by implementing the core of the ABC Test without any exemptions for any professions:
“Our main concern with the tractability of the ABC test is that if it is truly overinclusive, legislatures will continue to include carve-outs, which often reflect political will and power rather than a need to re-balance power in a working relationship.”
Put another way, Weil argues that with unionists having gotten their “overinclusive”—his word, not mine—ABC Test into law in California, the new problem is legislatures carving out and protecting legitimately self-employed people from it.
Which leads us straight to the New Jersey AFL-CIO today, taking the extreme stance about no new exemptions from the ABC Test whatsoever.
Like I said: We are now inside the deepest, darkest bowels of state government. And yes, the stink is atrocious.
Weil was, however, correct about one thing in that 2021 paper: Politicians playing favorites is exactly what we all saw happen with the exemption process in California, and it’s precisely what we’re seeing happen right now in New Jersey. This coming Thursday, the New Jersey Senate is scheduled to vote on a bill that would exempt only certain financial professionals and tow truck drivers from the Labor Department’s rule, while leaving all the hundreds of other ensnared professions trapped with our livelihoods in the crosshairs of this ABC Test madness.
The question that everyone should be asking is, as Weil wrote: “Who’s Responsible Here?”
But the real answer to that question isn’t in his paper. It’s instead as plain for the world to see today as it was during California’s Senate debate in 2019. It’s right there in Senator Stone’s hand.
The way to fix this policy problem is never going to be found in carveouts from deeply misguided policymaking. We need legislation that eliminates the ABC Test and that actually protects all kinds of independent contractors from this relentless, remorseless freelance busting, once and for all.