As life in the United States gets more expensive, more than a quarter of the public is considering taking on a side gig to make ends meet.
President Joe Biden’s Department of Labor is trying to make it difficult for self-employed entrepreneurs to work legally as independent contractors. For the second time in a little over a year, the Labor Department announced that it plans to withdraw the Trump-era rule that provides a clear and simple definition of who can legally qualify to be an independent contractor under the Fair Labor Standards Act.
In the modern world of the gig economy, the timing for this rollback of the clock could not be worse.
The Labor Department, in an attempt to overcome adverse court decisions and lend some legitimacy to the destruction of freelancing, hosted public forums in June to hear “perspectives” from workers and employers affected by employee or independent classification status.
The Trump-era rule was ideal. It hit the sweet spot, providing an economic reality test that allowed independent contractors the flexibility to manage their own careers and businesses with the clarity they need to engage in legitimate contracting relationships. According to Upwork, more than 59 million Americans chose some form of independent work in 2021, and more than 85% of those independent contractors prefer self-employment to a traditional employer-employee relationship.
Biden and his Big Labor allies, however, are attacking freelancers’ livelihoods using regulatory workarounds. Biden’s Labor Department is essentially trying to impose the one-size-fits-all approach of California’s disastrous Assembly Bill 5 and its impractical judgment that most independent contractors should actually be treated as W-2 employees.
Since going into effect in 2020, A.B. 5 has destroyed the careers of hundreds of thousands of independent entrepreneurs across a vast swath of professions in California, beginning with freelance journalists until they were given a special exception. But if it takes a special exception for freelance journalists to survive, that should make you wonder about all other freelance professions.
One such profession is trucking. Currently, more than 70,000 independent owner-operator truckers are waiting to hear whether the Supreme Court will take up their appeals case against A.B. 5. If not, it’s the end of the road for independent truckers in California. This will surely bring major upheaval to an already-challenged supply chain.
Meanwhile, app-based rideshare and delivery platforms are fighting to preserve their carve-out from A.B. 5 after a voter-approved initiative to save them was ruled unconstitutional by a state judge in Alameda County.
California’s ABC test for contract workers also appeared in the Biden-endorsed PRO Act, which passed in the U.S. House of Representatives in March 2021 but is stalled in the Senate. The PRO Act would bring California’s A.B. 5 chaos to the entire nation.
Given the Biden administration’s rabid anti-freelancer stance, the outcome of the Labor Department’s listening forums is likely a foregone conclusion. Nonetheless, activists in the freelancer movement are mobilizing. The ad hoc group Fight For Freelancers USA and other grassroots freelancer groups are sounding the alarm with a social media campaign called #WhatTheHellDOL.
The campaign urges independent contractors from across the spectrum to share stories with the DOL and on social media about why self-employment is essential to their lives and livelihoods.
When the Department of Labor says that most of us are misclassified and need W-2 jobs to survive, we say: What the hell, DOL? Like all those freelance journalists who demanded an exception, we know what we want to be doing and whom we want to be working for.
Karen Anderson is the founder of Freelancers Against AB5, which has 18,000 members. The group has joined forces with Fight For Freelancers USA to launch the #WhatTheHellDOL campaign.
