What Really Matters
Having a puppy has made me appreciate being an independent-contractor more than ever, and reminded me exactly what's at stake in this policy fight.
I’ve been a bit quieter than usual in recent weeks because, after losing my beloved 14-year-old mutt Ginger over the winter to kidney disease, I just welcomed a new puppy into my home.
Molly is a Beagle mix who arrived in April at 8 weeks old…
… and is now 14 weeks old ….
… and is in the thick of everything from teething and learning basic commands to trying to run and play while going through growth spurts that make her legs a different length pretty much every day.
Having Molly here has reminded me of two major things that involve independent-contractor policy, and that I hadn’t felt with this level of intensity in a long time.
Puppies don’t sleep through the night. They know nothing. They’re destructive. They need near-constant attention and have to go potty every two or three hours. As a freelancer, I was able to dial back my workload significantly so I could sleep or work when Molly slept, and so I could devote lots of time to basic training during those key early weeks. Nobody with a W-2 job has that kind of freedom.
Puppies are expensive. Have you been to a pet store or veterinarian recently? Hired a pet sitter? Signed up for puppy kindergarten? And there’s an endless need for new squeaky toys and teething bones. My den is like the first 20 minutes of Saving Private Ryan. A steady stream of new cadets is required to throw into the jaws of attack. These things all cost money, which my freelance business provides.
All of which makes it incredibly scary that my home state of New Jersey has continued to threaten my livelihood by keeping the Department of Labor & Workforce Development proposed independent-contractor rule alive for possible finalization until today—the last day before the rule is set to expire, one year after its publication in the New Jersey Register.
Far too many of our elected officials think it’s OK to keep threatening the livelihoods of people like me. They still defend this horrible concept of freelance busting, or at best ask for carveouts for favored professions like financial advisers and golf caddies, while leaving people like me with the fear of our entire income being destroyed.
I’m a New Jersey native, middle-aged homeowner, taxpayer and hard worker who is trying to take care of a puppy while writing and editing articles as a freelancer. When this whole policy mess began a number of years ago, I gave lawmakers the benefit of the doubt. I thought they must be confused about what they were doing and whom it would hurt. I, along with many other people, have spent inordinate amounts of time testifying before Congress and before state Legislatures to educate them that when they support freelance busting, they’re hurting people like me.
I’ve demonstrated a lot of patience, but now I’m tired, and Molly will be waking up and needing me again soon. So, let me be succinct.
The fact that New Jersey’s rule proposal made it this far is morally indefensible. This freelance busting needs to stop, once and for all.
The Far Better Approach
At the same time that my home state of New Jersey is demonstrating all the wrong ways to approach independent-contractor policy, we also just had the deadline pass for public comments to be filed about the U.S. Department of Labor’s proposed independent-contractor rule.
The federal rulemaking takes a far better approach to this policy area, one that focuses on two core factors to determine who is, and is not, a legitimate independent contractor:
whether the company or the individual is in control of the way we work
whether we have the opportunity to earn more or less through our own initiative and investment
As I just explained above, these two core elements are exactly the two things that have been paramount in my life as an independent contractor during these first six weeks with Molly at home. I’m in total control of when, where and how I work, and I’m able to dial my workload down or up depending on what Molly needs in her earliest weeks.
While the federal rule proposal isn’t perfect—I’m among the people who filed a public comment in support, but with suggestions to improve the language—the federal government is taking a much better approach than my home state. The U.S. Department of Labor is attempting to treat independent contractors like me with respect.
For that reason, I’m a big fan of the following idea with regard to those two core factors in the federal proposal. This idea is from a public comment filed by Wilson Freeman at Pacific Legal Foundation, who previously represented me pro bono in a lawsuit against the Biden administration’s independent-contractor rule:
“The Department could convert the core-factor alignment into a rebuttable presumption. When control and opportunity for profit or loss both indicate independent contractor status, the worker is an independent contractor, absent extraordinary circumstances that the Department or private plaintiff must affirmatively establish.”
What a smart idea. Make the regulatory language that matters far more definitive, so people like me no longer have to worry about activist regulators trying to strip us of our livelihoods.
I also really like the way the attorneys at the Littler law firm used their public comment to describe the overall situation that independent contractors are facing in this never-ending battle between good and bad policy. This bit below is from the Littler public comment, written by Alex MacDonald and Jim Paretti (who also helped me pro bono in the past):
“Even as businesses find it easier to buy services on the market, and even as workers find it easier to sell those services independently, regulators are trying to box them into old models. That, in our view, is a mistake. Regulation works best when it works with the market—accommodating rather than combating the trends moving through the economy. The Proposed Rule takes that approach. It would empower independent work, not stifle it. And for that reason, we support it.”
That’s this policy debate in a nutshell, right there. It’s about whether our state and federal governments are going to empower or stifle people like me. It’s about whether our policies are going to be on the side of extremism or entrepreneurism.
It is also, at a personal level, about whether this cutie-pie and I get to keep living here in New Jersey and going to parks like this one that my tax dollars pay to support, or whether I’m going to be forced to sell my house and move to a red state just so I’ll be able to continue earning income as a freelance writer and editor.
What an utterly ridiculous sentence to have to write, and what a senseless fate to have to contemplate when I should be working with Molly on “sit,” “stay” and “come.”
Having a puppy forces you to focus on only the things that truly matter. We need to do the same with independent-contractor policy at every level of government, before this madness gets any worse.