In 1931, while six million Americans were looking for work, my grandfather was digging basements with his brother for their boss when he had an epiphany. “Hey Frank,” he said. “We could do this for ourselves.”
Against all odds and despite the Great Depression, these sons of German immigrants who worked in the silk mills of Paterson, New Jersey, pursued their American dream by starting their own construction business. First, they built houses. Then when Route 80 was being paved toward the George Washington Bridge, they built warehouses.
“The trucks are coming,” he explained to my grandmother, who couldn’t understand why anyone would build in Parsippany, protesting that “no one lives there, Joe.”
But he was right. The trucks came. And Pop and Uncle Frank were tremendously successful.
So when my brother and I each went into business for ourselves in the 1990s, Scott in commercial real estate just like Pop, and me in freelance writing, Pop supported our dreams. But if lawmakers in New Jersey have their way, only my brother will be able to keep his business. Me? I’ll have to work for someone else or move out of state.
In what they say is an effort to address the problem of employee misclassification — employers calling workers independent contractors when they really should be employees with benefits, such as worker’s compensation and unemployment insurance — New Jersey politicians introduced legislation last year that inadvertently threatened the livelihoods of thousands of independent contractors like me. Like a much-criticized California bill signed into law last year, it was so overreaching in its scope that it targeted far more than misclassified employees. It would destroy the ability for everyone from attorneys to data analysts to work, because it made no meaningful distinction between an exploited worker and a career professional who chooses to work for herself.
My brother? He’d be OK — exemptions were granted to a select group of professions, including real estate. He’d keep his business. I’d lose mine.
Lawmakers who support such legislation say, “they merely codified the ‘ABC’ test,” the three-pronged test used by some U.S. states to determine whether a worker is an employee or an independent contractor. But that’s not true. The test isn’t always applied in the same ways. It’s also outdated, and it’s been subjected to numerous lawsuits. A more accurate and updated test is the Internal Revenue Service’s Common Law test, which New Jersey has used.
Last month, dozens of fellow freelancers and small business owners testified before the State Senate Labor Committee in Trenton for four hours, explaining how the bill, as written, would make it impossible to operate as independent contractors in the Garden State.
Senators advanced the bill anyhow, but we managed to shut it down before the final vote. Then, on the first day of the 219th Legislative Session last week, the Senate introduced S863: new session, same old bill.
As currently written, S863 makes it illegal for independent contractors to spend a few hours at a meeting in a client’s office unless they are labeled as employees and afforded all related benefits. It would force a contractor to put a subcontractor who installs kitchen cabinets for a day or two on the payroll.
Meanwhile, several related bills quietly passed and await Governor Murphy’s signature — yet another step in the Department of Labor’s encroachment on small-business owners statewide. What’s more, the DOL and the current administration are getting stricter in their interpretation of the ABC test. Late last month, community newspaper the Westfield Leader was forced to stop hiring freelance writers and photographers after the DOL fined the paper’s publisher retroactive to 2015.
Now there’s even a national bill, the Protect the Right to Organize Act (PROAct), which at first glance appears to protect workers, but it not only contains the narrowly focused ABC test that can make freelancing risky, it tightens the guidelines even further.
I have made more money and enjoyed more flexibility than I could have while working for someone else, and I’ve paid my fair share in taxes. But now, the way I have worked for a quarter of a century while raising my children, first as a married mom and then as a single one, is under attack on multiple fronts.
These bills fail to consider that the modern-day American workforce doesn’t fit neatly into the 9-to-5, traditional employment model of the 20th century — the model my grandfather rejected 90 years ago, inspired by the entrepreneurial spirit for which this country is known.
This spring, my son will graduate from art school with plans to be his own boss. After all, entrepreneurship runs in the family. But I’ve told him that if this bill passes, he can’t freelance at home. Then again, he can’t stay in New York, either; a similar bill has been introduced in Albany.
This legislation is not only anti-independent contractor. It’s un-American.
Jen Singer is a freelance writer in New Jersey and cofounder of Fight for Freelancers NJ.