'This Rule Will Not Stand'
A Q&A with New Jersey gubernatorial candidate Jack Ciattarelli about independent-contractor policy.
Editor’s note: On October 14, I emailed the campaigns of Jack Ciattarelli and Mikie Sherrill to request Q&A interviews with each candidate for governor in my home state of New Jersey. Sherrill’s team did not respond.
The first time I ever spoke with Jack Ciattarelli was about five years ago on a video call. There were quick introductions, and then I started to give him an advocacy pitch about independent-contractor policy.
These kinds of conversations with politicians typically involve about 10 minutes of me explaining that most independent contractors are not Uber drivers. I talk about how we like being our own bosses as freelance writers, owner-operator truckers, graphic artists, real-estate agents, finance and insurance experts, translators and interpreters, attorneys and a whole lot more.
Much to my surprise, Ciattarelli already understood the policy issue. He started explaining why independent contractors need protection here in New Jersey.
I was speechless. It was a first.
Nowadays, when I show up at any kind of Ciattarelli event, he sees me, smiles, comes over to say hello and quite enthusiastically says, “Independent contractors!” If he’s giving a speech, he points me out in the crowd and talks about the policy issue so everyone in the room understands that our ability to earn a living must be protected. He champions those of us who are speaking out on behalf of New Jersey’s estimated 1.7 million independent contractors.
As you can see in these most recent photos of the two of us from his Morris County campaign stop at the Chester Diner, he’s a guy who leans in. Genuinely.
Independent contractors are most worried right now about the proposed rulemaking at New Jersey’s Department of Labor & Workforce Development. I had several questions for Ciattarelli about that, as well as questions about other things too.
Here’s my Q&A about independent-contractor policy with Jack Ciattarelli.
Q&A with Jack Ciattarelli
Would you please share your personal background of working with independent contractors, so people can hear what I heard from you on that video call all those years ago?
Kim, it’s great to have these discussions with you. And yes, I remember that conversation and I’ve since shared my personal experience with independent contractors, most recently during an appearance on Univision. A gentleman asked me if I have any policies that are good for truck drivers specifically. I asked him if he meant independent truckers in particular, and he said yes. So I shared with him my perspective as someone who comes from a family of business owners, and that’s one of many ways you can achieve your version of the American dream.
There has to be a balance that allows a person to be a W-2 employee or a 1099 independent contractor, whatever they want. I told this gentleman, as I previously told you, that my publishing business would never survive if the proposed regulation in Trenton were in effect. My business relied on hiring many medical editors who worked as independent contractors, self-employed people who can work the way they chose to work. If I had to hire them directly as employees, my business would fail and there would be 20 other jobs never created.
I’m for letting people follow their American dream, and if they choose the path of being independent contractors, we’re going to make sure that path is there for them.
New Jersey’s Legislature, about a half dozen years ago, rejected legislation based on a California law called Assembly Bill 5 that involved the classification of independent contractors and employees. Do you believe the New Jersey Legislature made the right or wrong call when it let that California-inspired bill die? And why?
As I recall, the Legislature listened to the reaction of lots of independent contractors who just wanted to be allowed to continue working the way they want. They wanted to be their own boss, not an employee of someone else. There’s nothing wrong with being an employee, if that’s what you want and that’s what’s best for you. But there’s also nothing wrong with choosing to be your own boss. It should be your decision, not the government’s.
For many of those folks, that bill would have destroyed their entire business model and their livelihood, and also would have hurt countless industries in our economy. Again, I look back on my own experience and know that the bill would have killed jobs and ended the American dream for many New Jerseyans.
So yes, the Legislature made the right decision then. And I can’t say that about a lot of the decisions the Legislature has made recently.
Right now, New Jersey’s Labor Department has proposed regulatory rulemaking that attorneys say “almost entirely eviscerates” any chance of establishing independent-contractor status, and is “an existential threat to flexible, independent work.”
This proposed rulemaking drew a deluge of about 9,500 public comments, in a process that the New Jersey Chamber of Commerce told me is usually lucky to get even 100 comments. And those estimated 9,500 comments are 99% opposed.
Even despite all this public pushback, Governor Murphy has so far refused to rescind the Labor Department proposal. Do you believe that whoever is governor has an obligation to respect the will of the people when it’s made so clear in a public comment process?
There’s a reason why state law mandates a public comment period when regulations are proposed. If you have the power to hand down a rule requiring New Jersey residents to do or not to do something, you have to first listen to what people who would be affected have to say about it. You learn by listening. From the time I decided to enter public service, I’ve learned more from listening to people than I ever could have learned any other way. You get a sense of what drives people and what their concerns are that you just can’t get without listening to them.
So yes, the governor and the Department of Labor need to listen and learn. Now, I wouldn’t say that it’s simply a mathematical issue—that you go with 51% of commenters instead of 49% of them—but when you get to that many comments and 99% of them are saying the same thing, you have to learn from that and seriously question what you’re trying to do.
You have said that if you are elected governor, you will reverse this Labor Department rulemaking about independent contractors. How quickly would you take that action after you are sworn into office?
That’s a question that really depends on what my legal team tells me. I understand the process for repealing a rule—if that rule is in place when I become governor—is pretty much the same as it is for adopting the rule in the first place. There’s a notice requirement, and then time for public comment. I know there’s an expedited process available, but that’s also a question for the lawyers.
My best answer is, as soon as possible.
No matter who wins the gubernatorial election in November, we are going to have a lame-duck session in the New Jersey Legislature between Election Day and the swearing-in of the new governor. It is possible that Governor Murphy could finalize the proposed Labor Department rule during that time period.
Republican Senator Declan O’Scanlon, along with Republican Assembly members Gerry Scharfenberger and Vicky Flynn, have announced their plan to introduce legislation that would declare the rule “inconsistent with legislative intent, if the Department doesn’t respond to the public outcry and rescind or satisfactorily modify their proposed rule changes.” Assemblywoman Flynn posted on social media that she plans to gather bipartisan support to pass this legislation, which would basically be a legislative override of the rulemaking.
Do you support this plan in the Legislature? And if so, how would you help these legislators get it done?
You and I have talked about the bipartisan opposition to this rule change, and I’ve seen letters from Democrats and Republicans in the Legislature submitted as part of the public comment process. I would certainly support a legislative effort to override the rule if it’s adopted, but to be honest, I’m not sure there are enough members of the current majority party who would be willing to cast the right vote.
But as someone who’s been endorsed by many Democrats to be the next governor, I’m all for a bipartisan effort to override the rule, and I would use my position as governor-elect—which I will be on November 4th—to make it clear this rule will not stand, and if the Legislature fails to act, I will.
One of the public comments filed in opposition to the Labor Department’s proposal is from economist Liya Palagashvili at the Mercatus Center, who regularly testifies before Congress about this policy area.
She did an analysis showing that the way the State of New Jersey is currently using the ABC Test to determine independent-contractor status has already led to harmful effects compared to states that do things differently. In New Jersey, she found a comparable 3.81% decrease in W-2 employment, a 10.08% decrease in self-employment and a 3.95% decrease in overall employment.
At the same time, based on the disastrous outcome with the ABC Test law in California, Republicans in Congress have been moving to pass federal legislation based on regulatory language that’s different from the ABC Test.
If you are elected governor, would you consider discussing options for New Jersey to use different regulatory language than the ABC Test to determine independent-contractor status?
Of course. You know me, Kim. I’m always willing to listen and consider new ideas.
But I’ve been focused on New Jersey and the laws and policies I would have to handle as governor, so of course I can’t really make any decisions on the federal bill until I know more about it. I’m sure you’ll tell me more at another time. You’ve got me intrigued.
Many, many times, I have heard the people who support freelance busting claim that if our government protects our freedom to be independent contractors, then we are being anti-union.
I don’t believe that’s true. I grew up in a union household, and my parents had side hustles when I was a kid. I know that both kinds of work can coexist, and I think everybody should be able to work in whatever way works best for us.
I saw that you have received some union endorsements while also expressing your support for independent contractors. Do you see this policy area as favoring one or the other way of working, or supporting both ways of working, or something else?
You’re right, of course, I do have union support and I value it. Your experience growing up in a union household, having parents in unions who also earned money in other ways, is just more proof that there doesn’t have to be an all-or-nothing approach on this.
Look, this whole issue has been tied to misclassification, as you know. And misclassification is wrong, and there are laws on the books saying so and saying how the government should go about fighting it. I just don’t see a need for conflict here. We can fight misclassification and let people work as independent contractors at the same time.
That’s what we’ve been doing, and when I’m governor, we will keep doing it.
Independent contractors have also been under threat at the federal level, with legislation called the PRO Act that would inject California’s type of freelance-busting regulatory language into federal law. I’ve testified three times before Congress about this threat, most recently in July before the U.S. Senate.
I’ve heard you talk on the campaign trail about how you plan to try and get New Jersey’s U.S. representatives and senators on the same page about issues that affect our state’s citizens.
If you are elected governor, would you include discussing independent-contractor policy with them, to help us with this policy area in Washington, too?
That’s right, I’ve talked about meeting regularly with our elected officials in Washington, both sides of the aisle, to see how we can combine efforts to get what our constituents deserve from their federal government. My opponent doesn’t seem to like that idea, but I will gladly work with her and the rest of the delegation when I’m governor because that’s what advocates for our state should do.
And yes, coming back to your question, that will include policy toward independent contractors and anything else that’s on the minds of New Jersey residents. I know that the IC issue is very much on the minds of those who want to keep working that way. I’ll be their advocate, and I’ll be an advocate for union workers as well because, just as I said earlier, I don’t see a conflict between the two.
What else would you like independent contractors in New Jersey to know as we all head to the voting booth on Election Day?
Just what you can hear me say on TV, Kim. I’m a Jersey guy, born and raised, with family going back a hundred years in our state. I’m not in this as a stepping stone to anything else. I don’t want to be a senator or a presidential candidate. This is my last stop. I want to help fix what’s wrong with the state I love, and make it a better and easier place to live, work, raise a family and retire. That’s my only goal. And I know I can do that, or else I would just go back to LBI and find something else to do.
If your readers want a governor who loves this state and will get up every morning and work to make it better—just like I get up every day now and work hard to earn the job—then I’d love to have their support.
Thanks for your time today, Kim.