NJ S863 (formerly S4204/A5936) AFFECTS AN ENORMOUS NUMBER OF PEOPLE, MANY OF WHOM ARE WOMEN, PEOPLE OF COLOR AND OLDER WORKERS—AND THE MAJORITY OF WHOM ARE HAPPY WITH THINGS EXACTLY AS THEY ARE NOW.
- At least 1 in 10 U.S. workers, or about 15.5 million people, work as independent contractors. Some studies say it’s closer to 1 in 3 U.S. workers, or around 50 million people, depending on how you define “freelancing.” According to Harvard Business Review, 1 in 3 U.S. workers are freelancing, up 4 million (13 percent) since 2014. According to a September 2020 study by Upwork, the number of freelancers in America is 59 million (36 percent of the U.S. workforce).
- Most independent contractors prefer to work that way. According to the U.S. Bureau of Labor Statistics, as of 2018, some 79 percent of independent contractors “preferred their arrangement over a traditional job.” Separate studies done in 2019 and released in 2020 by ADP Research and Gallup reported similar findings. Upwork’s study, with data collected during the Covid-19 pandemic in June and July 2020, found that 60% of freelancers said no amount of money could get them to return to a traditional job.
- Also according to the U.S. Bureau of Labor Statistics, independent contractors tend to be older than other workers: More than 1 in 3 are at least 55 years old (and thus not likely to get new full-time jobs if freelancing is eliminated as a work option for them). The Upwork study in 2020 found that for those 55 or older, freelancing helps to address financial needs as they grow older; 65 percent of Boomers who freelance say independent work is a good way to transition into retirement.
- The majority of independent contractors are not underpaid or exploited. A 2019 study by the IRS and U.S. Treasury found that the largest group of independent contractors is in America’s top quartile of earners. A study by MBO Partners found that 1 in 5 freelancers earn more than $100,000 a year. Gallup and ADP Research both released studies in 2020 showing that independent contractors earn about the same income as traditional employees. Upwork’s study, with data collected during the Covid-19 pandemic in June and July 2020, found that 75% of freelancers earn the same or more than they would in a traditional job.
- Many freelancers are women. According to the IRS and U.S. Department of Treasury, the number of women who are primary household earners, and whose primary income is from independent contractor work, has increased by more than 90 percent since 2001
- Many freelancers are people of color. After California’s version of NJ S863 went into effect January 1, 2020, the law “crushed thousands of Black businesses,” according to the CEO of the California Black Chamber of Commerce. That organization, along with the California NAACP and National Action Network, are urging voters in that state to gut the law in a November 2020 ballot proposition because “disadvantaged communities and communities of color will be most hurt” if labor laws like these are allowed to remain on the books. Benjamin F. Chavis Jr., former head of the national NAACP, wrote an op-ed calling the California version of S863 (formerly S4204) “racist,” “regressive” and “unconstitutional.”
- More than a quarter of Americans now rely on the gig economy to supplement their income in some manner, and 1 in 10 rely on it as their primary source of income
- The ABC test that S863 (formerly S4204) would codify into law was written in the 1930s—when there was no such thing as the Internet, most women did not work outside the home, and people had far fewer work options than we have today
- California’s version of this regressive legislation is causing chaos across multiple industries. New Jersey lawmakers can avoid similar economic chaos by voting no on S863
FREELANCE WRITERS, IN PARTICULAR, ARE NOT “EXPLOITED GIG WORKERS.” NJ’s WRITERS ARE AMONG AMERICA’S HIGHEST PAID
According to the U.S. Bureau of Labor Statistics, as of 2018:
- 61 percent of writers in the United States are self-employed
- The median annual wage of U.S. writers is $61,170
- New Jersey is the fourth-highest paying state in the nation for writers. In the Garden State, the annual mean wage for writers is $81,160
- And there are a lot of us here. The New York-Newark-Jersey City-Pennsylvania corridor is the No. 1 metropolitan location where writers live
- Little to no change is expected in this field’s breakdown through the year 2028
SENATE PRESIDENT STEVE SWEENEY KEEPS SAYING S863 (formerly S4204/A5936) MERELY CODIFIES EXISTING LAW. THAT IS NOT TRUE. S863 WOULD LEGALIZE INTERPRETATIONS OF EXISTING LAW THAT THE COURTS SAY ARE ILLEGAL.
Because of the way S863 is written, it not only would change existing employment law, but it also would change it in ways that the NJ courts have repeatedly told the NJ Department of Labor are illegal—and even more extreme than the way a similar law is being used to destroy independent contractors’ careers right now in California. Under S863, NJ would have the most severe and extreme employment law in the United States.
As the NJ Civil Justice Institute writes: “One also wonders how an entrepreneur could ever build a business under the Department of Labor interpretation.”
THE NATIONAL LAW REVIEW WARNS THAT S863 WOULD GIVE THE NJ DEPARTMENT OF LABOR COMMISSIONER UNPRECEDENTED POWERS
Read the full article here: “It is unclear what should be made of the requirement that the ABC test must be proven ‘to the satisfaction of the Commissioner.’ Typically, neither the NJDOL, nor the commissioner, has any involvement in private lawsuits, and it is unclear at what point, or through what mechanism, a putative employer would even have the opportunity to prove the requirements of the ABC test ‘to the satisfaction of the Commissioner,’ in the context of a lawsuit filed in court … if the idea is that the law should be whatever the commissioner says it is in a given moment, that would be a different problem altogether.”
SUPPORTERS OF S863 (formerly S4204/A5936) ALSO KEEP SAYING THESE BILLS WILL ONLY HURT BIG, BAD-ACTING COMPANIES. TELL THAT TO THE WESTFIELD LEADER, WHICH HAD TO FIRE ITS FREELANCE WRITERS
THERE IS NO BIPARTISAN SUPPORT FOR THIS TYPE OF LEGISLATION. THE ENTIRE NJ GOP, INCLUDING SENATE MINORITY LEADER TOM KEAN, IS UNITED IN OPPOSITION
Read Senator Kean’s statement calling on Democrats including NJ Gov. Phil Murphy to stop attacking freelancers and the media.
NJ’S S863 (formerly S4204/A5936) IS SIMILAR TO CALIFORNIA’S AB5, WHICH IS FACING FEDERAL LAWSUITS ON THE GROUNDS THAT IT VIOLATES THE U.S. CONSTITUTION
On Dec. 31, 2019, a federal judge granted a temporary restraining order to stop enforcement of AB5 in the trucking industry. On January 8, 2020, a judge ruled that the law cannot be applied to the trucking industry.
The American Society of Journalists and Authors is seeking a similar restraining order as part of its federal lawsuit against the State of California over AB5.
Uber and Postmates are seeking a similar restraining order as part of their federal lawsuit against the State of California over AB5.
S863 (formerly S4204/A5936) IS A 20TH-CENTURY APPROACH TO THE 21ST-CENTURY WORKFORCE. LISTEN TO THESE LAWYERS AND EXPERTS
Read how the National Law Review calls this type of legislation “a policy petri dish.”
Read the letter that Holly Kaplansky, president of the New Jersey Association of Women Business Owners, sent to Gov. Phil Murphy, telling him that S4204/A5936 (now S863) “will have a destructive effect on women-, minority- and veteran-owned businesses in New Jersey.”
See how the Hoover Institution at Stanford University says, “The problem with New Jersey’s argument is that there is no unemployment among gig workers. They don’t need unemployment benefits. These laws are really nothing more than money grabs for state and local governments and politically important constituents, and should be recognized as such.”
Read how Law360 advises, “Instead of seeking to change existing law in a manner that would effectively eliminate the overwhelming number of independent contractors, legislators should instead seek greater enforcement of existing laws including existing tests for independent contractor status.”
Read the testimony of Alida Kass, president and chief legal counsel of the NJ Civil Liberties Institute, before the NJ Senate Labor Committee, that the legislation “would impose a plainly unworkable default rule on the New Jersey business community that would produce massive economic dislocation.”
Read the statements of the NJ State Bar Association about “the bill’s expansive view of employees that would significantly impact not just practitioners, but all fields that utilize per diem or contract employees.”
LOCAL LEADERS ARE STEPPING UP TO PROTECT THEIR CITIZENS
Bergen County: Read the resolution that the Borough of Woodcliff Lake passed, opposing “any further action being taken by the New Jersey Legislature on S4204 and A5936” (now S863).
Essex County: Read the resolution that the town of Maplewood passed, stating that it opposes the legislation and wants to ensure that “the livelihood of legitimate independent contractors is not jeopardized by unintended consequences.”
Essex County: Read the letter that South Orange Village President Sheena Collum sent to Senate President Steve Sweeney, urging him to withdraw the legislation “for consideration until a time when language can be properly integrated to ensure that the livelihood of our state’s legitimate independent contractors is not jeopardized.”
Essex County: Read the letter that the North Essex Chamber of Commerce sent to Gov. Murphy, saying that if the legislation were to become law, “Businesses who serve companies as independent service providers, including marketing and business strategists, trainers, freelance writers, consultants, graphic designers, and others will be put out of business.”
Gloucester County: Read the letter that Pitman Mayor Russell C. Johnson III sent to Senate President Steve Sweeney, telling him that “it seems this bill will specifically harm the earning opportunities for our seniors and women in this state.”
Morris County: Read the letter that Washington Township Mayor Matt Murello sent to Senate President Steve Sweeney, requesting that the legislation be withdrawn because “this bill could have disastrous implications for many thousands of independent contractors.”
Warren County: Read the letter that Hackettstown Mayor Maria DiGiovanni sent to Senate President Steve Sweeney, saying the legislation “deserves a pause and not a rush to enact. New Jersey deserves better!”
PROFESSIONAL ORGANIZATIONS ARE DEMANDING FAIR TREATMENT FOR WRITERS, JOURNALISTS AND OTHERS
“Statement on Legislative Threats to Freelance Writers,” published by the American Society of Journalists and Authors
“Position Statement on Legislation that Negatively Affects the Livelihood
of Freelance Medical Communicators,” published by the American Medical Writers Association
“New bills could hinder freelancers’ work in 2020,” published by the Association of Health Care Journalists
“Statement on Legislation Affecting Freelancers,” published by the Editorial Freelancers Association
KISS YOUR CAMPAIGN WORKERS GOODBYE
California’s version of NJ S863 (formerly S4204/A5936) will remake—and significantly raise—the budgets for political campaigns, per the political and election lawyers at The Sutton Law Firm in Los Angeles and San Francisco: “While consultants, attorneys and pollsters who have their own firms and who work for several political campaigns at the same time will probably be able to avoid the reach of AB 5, campaign staff, phone bank workers, canvassers, petition circulators and other lower-level workers on candidate or ballot measure campaigns will likely be reclassified as employees. Not only would these campaign workers be entitled to significantly greater rights and benefits from the campaigns, but the campaigns would incur significant new expenses (in the form of payroll, unemployment and disability taxes) and significant new administrative burdens (in the form of employee handbooks, training and quarterly employment flings).”
THOSE WHO SAY S863 (formerly S4204/A5936) IS BAD FOR NEW JERSEY
New Jersey State Bar Association
New Jersey Business and Industry Association
New Jersey Chamber of Commerce
New Jersey Civil Justice Institute
New Jersey Press Association
New Jersey Association of Women Business Owners
Commerce and Industry Association of New Jersey
Bi-State Motor Carriers
Independent Bakers Association
American Society of Journalists and Authors
SENATE PRESIDENT STEVE SWEENEY SMEARED NEW JERSEY CITIZENS AGAINST THIS LEGISLATION AS RUSSIAN DISINFORMATION OPERATIVES IN THE ASBURY PARK PRESS—ALL BECAUSE HE CAN’T ARGUE THE FACTS OF JUST HOW DESTRUCTIVE THIS LEGISLATION IS TO WORKING PEOPLE
THE NATION IS WATCHING YOU
From The Washington Post: “The independent contractor laws now being written in a handful of states are setting precedents for how the language is going to be written across the country. If we screw this up in New Jersey now, then millions of Americans stand to be screwed over later.”
VOTE NO ON NJ S863 and VOTE NO ON THE FEDERAL PRO ACT with the ABC TEST