Independent Writers of Chicago - Confronting the Foes of Freelancers

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Confronting the Foes of Freelancers | President's Post by Laura Stigler

01 Oct 2023 12:19 PM | Laura Stigler (Administrator)

NOTE: The following is an update from my several postings regarding the ABC Test and pending legislation that, if passed, will affect all Independent Contractors. Like us.

It’s a good feeling when you can meet head-on with the opposition – lawmakers who regard their constituents as a faceless blob that can be ignored and manipulated. When you actually confront them in the flesh, showing them you are a real, three-dimensional person who would be adversely affected by their wrong-headed policies, you can see in their eyes and demeanor their arrogant confidence being shaken. When challenged with real facts, they cannot resort to the parroting of tired talking points, fake facts, and gross mis- and dis-information. Instead, they are left with mouths agape, speechless.

That is what happened at a roundtable I attended via Zoom on August 31, initiated by Illinois State Representative Suzanne Ness (D), whose purpose was to “elevate the voices” of those who choose to be Independent Contractors (IC) and to draw a clear distinction between what is and isn’t independent contracting. Because of my position in IWOC – and therefore representing the freelance writers of our organization, as well as having been vocal in fighting for the right for freelancers to remain freelancers, I was invited to this meeting by fellow Independent Contractor Marc Avelar (who lives in Rep. Ness’s 66^th district), along with “Fight 4 Freelancers” co-founder and dynamo Kim Kavin. Attendees also included IL State Representative and Chairman of the House of Labor & Commerce Committee Marcus Evans, Jr., (D) plus other IC’s, small business owners and representatives of the AFL-CIO, Illinois Dept. of Labor, and Dept. of Commerce & Economic Opportunity.

This is real. This is serious.

If you’re not familiar with the issue, this all has to do with the ABC Test -- a test used to classify employees and Independent Contractors. You probably never heard of it because the mainstream media is not covering it:

In a nutshell, the Biden Administration is attempting to write into national law the same ABC Test that California has used to classify Independent Contractors -- a test that resulted in the loss of livelihoods of tens of thousands of ICs in California. Illinois and other pro-union blue states are in the planning stages of enacting the same ABC Test.

If passed nationwide, it will affect 60 million Independent Contractors. That’s 1/3 of the entire U.S. workforce. This is a group not only comprised of writers of all stripes, but of IC’s representing over 600 fields in all, from CPA’s, lawyers, and Realtors® to truckers, caregivers, pharmacists, translators, videographers, physical therapists, hair stylists and many more. And if you’re not an IC but normally hire ICs (and who doesn’t!), they may not be able to work for you any longer – unless you hire them as your W-2 employee. Please know, this is not a partisan issue. The hundreds of thousands of IC’s who have joined in this fight range from Bernie Sanders to Donald Trump voters. It can and will affect us all.

Now back to the meeting.

Here’s what happened that you might find rather ironic, and that encapsulates this whole situation: The aforementioned Rep. Evans is also an independent licensed real estate appraiser. He confidently mentioned that he has 18 clients, believing that that is what qualifies him as a “legitimate Independent Contractor.” Therefore, the ABC Test in Illinois (that mimics California’s) will have no effect on him. Or so he thought. Immediately Kim Kavin shot back with one stark fact of which she is thoroughly well-versed, saying: “I’m so sorry to tell you, but part B of this ABC Test will put you out of business, too. Welcome to the state of California!” The silence that fell over the room was deafening. Talk about shock and awe. It truly was awesome. Suddenly, a lawmaker is blindsided with the reality of his own policies. How do ya like ‘em now, Mr. Evans!

FYI, Part B says that you are an Independent Contractor if you “perform work that is outside the usual course of the hiring entity’s business.” Mr. Evans appraises real estate for real estate companies. Same line of business, right? Therefore, his business relationship would be deemed illegal unless his clients hire him as an employee.

Among other withering points we voiced in the meeting that smashed the prejudicial notions of these Powers That Be:

The AFL-CIO rep had recently outrageously claimed that Independent Contractors were largely made up of Uber drivers, illegal immigrants, and felons. But the very presence of Ms. Kavin, Mr. Avelar, myself, and the other ICs in the meeting, plus our listing out loud numerous other fields that ICs represent -- all made minced meat out of that stupendously ignorant claim.

The Illinois Dept. of Labor rep blithely accused small businesses of hiring ICs to “cut corners” in order to undercut any competition. I could not let that stand and strongly refuted that foolish statement by giving the reasons that such businesses hire ICs: It is because maintaining full-time employees incurs countless costs that would make their businesses unviable. What they DO end up doing is providing services and goods that customers want, while concurrently enabling ICs to make a great living of their choosing. Again, no response from the IDOL rep.

In my opening statement, I asked point blank, “What business is it of the government to decide how Independent Contractors work? We are tax-paying citizens who choose this life/work style for the flexibility and freedom it offers. No one has the right to force us into living and working any other way. It is patently un-American.” This, too, was met with no reaction. But here’s their dirty little secret: Sure, unions can serve a purpose. And that’s fine if that’s what one wants. But unions across the country are losing membership. Losing membership means losing dues to fund their pensions. It means losing power. And losing the quid-pro-quo support of union-friendly politicians. Therein lies the real reason for this massive effort to get us all to be W-2 employees, thus cutting off our free will to work when, how, and for whom we choose. Independent Contractors cannot be corralled into unions. It’s easier to unionize employees.

To Representative Ness’s credit, she is the sponsor of Bill HR3441 that seeks to codify guidelines for Independent Contractors to align with the longstanding ABC Test that adheres to the IRS definition – one that has been used as the standard for decades and is fair for all parties involved. Says Ms. Ness, “It is also a way to ensure that those who work as Independent Contractors for a variety of reasons, can continue to do so in an unimpeded way.” Only since California has enacted the more complex version of the ABC Test has all this chaos ensued.

The fight for freelancers has been going on for four years. The hopeful news is: The enactment nationwide of the California-inspired ABC Test is currently being blocked in the Republican-controlled U.S. House, and in the U.S. Senate by all Republicans and AZ Senators Sinema (I) and Kelly (D) and VA Senator Warner (D). That’s a good thing – as long as they all stand their ground. In 2024, if Democrats win majorities in the House, Senate and keep the White House, expect the ABC test to rear its ugly head and be passed. Should Republicans win in all three branches, this whole issue will be dead in the water. However...

Blue states, such as our very own Illinois, can still enact its own rules. Hence the meeting I attended. Our legislators have to know what harm they will be inflicting on nearly 2.8 million Illinois residents who are ICs.

So here’s the deal: IT’S IMPORTANT YOU VOICE YOUR OPPOSITION TO THE ABC TEST. With very little effort, you can make a giant impact. Choose any or all of the following for a course of action, and also to equip yourself with accurate information:

1. Contact (email, phone, or visit) your Illinois Senator and Representative. As Kim Kavin advises: Let them know that if they wipe out your business, you’ll see to it that they lose their job, as you will not be voting for them. Be frank. Ask them if they want to hurt you by destroying the way you choose to work. They’ll always say no, they don’t want to hurt you. It will make them see you as a real person whose life can actually be harmed by their decisions. Hopefully, they’ll have the political courage to not pass this destructive bill. Tell them to instead, support Bill HR3441.

2. View the very short videos at https://fightforfreelancersusa.com/videos/ They’ll tell you everything

3. Join the Facebook group Fight for Illinois Freelancers to stay locally informed.

4. Here’s an easy outline of what you can do.

5. https://fightforfreelancersusa.com gives you the background of this battle, the latest news and more.

6. Watch “Right to be Independent Contractors,” a 1-hour podcast that really lays it all out in a discussion between Kim Kavin, Karen Anderson (Freelancers Against AB5), Mike Hruby (New Jobs America), and Steve, Rideshare Rodeo podcast host.

7. Amicus Brief presented by Fight For Freelancers to the National Labor Relations Board. You can go to pg. 6 to read the summary, followed by the argument.

We are in the fight of our (freelance) lives and livelihoods. We must remain Independent Writers of Chicago. Thank you for taking action.

-- Laura Stigler

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21 Oct 2023 12:40 PM | Anonymous

This is clearly an important issue. What a shame to see it presented here in such a juvenile, hyperbolic, and politically biased fashion.

Let’s walk through this blog post section by section, shall we?

-- “This is real. This is serious.”

Yes, it is. So, it deserves serious discussion… not this unreasoned, sky-is-falling claptrap.

-- “If you’re not familiar with the issue, this all has to do with the ABC Test -- a test used to classify employees and Independent Contractors. You probably never heard of it because the mainstream media is not covering it:”

Oh, that darned Mainstream Media—they just refuse to cover all the really important stuff and are to blame for so much that is wrong in this country. And you, dear reader, are probably completely ignorant of this issue, even if you’re a freelance writer living in Illinois, because… well, just because, that’s all.

-- “In a nutshell, the Biden Administration is attempting to write into national law the same ABC Test that California has used to classify Independent Contractors -- a test that resulted in the loss of livelihoods of tens of thousands of ICs in California. Illinois and other pro-union blue states are in the planning stages of enacting the same ABC Test.”

It would be nice to see an actual statistic here of how many ICs in the State of California actually lost their livelihoods due to the passage of Assembly Bill 5 (AB 5) in 2019. In fact, it would be nice to get the take of current members of the Independent Writers of Southern California (IWOSC) (which was started years ago by former IWOC members who moved to the West Coast) because, presumably, they have been affected directly by the law.

That take, by the way, should be CURRENT—meaning that it should include not only the effect of the original AB 5 but also of AB 2257, which the State of California passed in 2020 to clarify, amend, and create category carve-outs for the ABC Test of AB 5. Strangely (or not), this blog post makes only passing mention of AB 2257 and, even then, does not mention it by bill number.

And presumably, if Illinois is in the process of modeling a proposed law on the CURRENT California model, someone involved in that process is aware of AB 2257 and the importance of including its provisions.

Here is a good summary of those provisions, by the way:

https://shawlawgroup.com/2020/09/ab-2257-cas-improved-independent-contractor-law-explained/

Oh, and it turns out that it’s only the Blue/pro-union states that are considering this dastardly law, not the Red states, which are controlled by a reasonable political party which would never think to impose government control on private matters.

But remember, this is not at all a partisan issue (see below).

-- “If passed nationwide, it will affect 60 million Independent Contractors. That’s 1/3 of the entire U.S. workforce. This is a group not only comprised of writers of all stripes, but of IC’s representing over 600 fields in all, from CPA’s, lawyers, and Realtors® to truckers, caregivers, pharmacists, translators, videographers, physical therapists, hair stylists and many more. And if you’re not an IC but normally hire ICs (and who doesn’t!), they may not be able to work for you any longer – unless you hire them as your W-2 employee. Please know, this is not a partisan issue. The hundreds of thousands of IC’s who have joined in this fight range from Bernie Sanders to Donald Trump voters. It can and will affect us all.”

Reminder (again): This is not a partisan issue. Everyone from political independents to MAGA Republicans are in this fight. And that, of course, includes a great swath of the political spectrum, excluding only Democrats.

-- “Now back to the meeting.”

Okay, why not.

-- “Here’s what happened that you might find rather ironic, and that encapsulates this whole situation: The aforementioned Rep. Evans is also an independent licensed real estate appraiser. He confidently mentioned that he has 18 clients, believing that that is what qualifies him as a “legitimate Independent Contractor.” Therefore, the ABC Test in Illinois (that mimics California’s) will have no effect on him. Or so he thought. Immediately Kim Kavin shot back with one stark fact of which she is thoroughly well-versed, saying: “I’m so sorry to tell you, but part B of this ABC Test will put you out of business, too. Welcome to the state of California!” The silence that fell over the room was deafening. Talk about shock and awe. It truly was awesome. Suddenly, a lawmaker is blindsided with the reality of his own policies. How do ya like ‘em now, Mr. Evans!

FYI, Part B says that you are an Independent Contractor if you ‘perform work that is outside the usual course of the hiring entity’s business.’ Mr. Evans appraises real estate for real estate companies. Same line of business, right? Therefore, his business relationship would be deemed illegal unless his clients hire him as an employee.”

Ironic? No. Wrong? Yes.

Apparently, neither Ms. Kavin nor Mr. Evans (since he didn’t provide an immediate rebuttal) were aware that AB 2257 specifically excludes real estate appraisers—along with graphic artists and freelance writers—from the pool of those independent contractors who are subject to the ABC Test set out in AB 5. Real estate appraisers in California are currently subject instead to the “Borello test,” just as they were before the passage of AB 5.

Reference? Oh, yes.

https://www.appraisalinstitute.org/ano/california-legislation-clarifies-status-of-appraisers-as-independent-contractors-/

So, indeed, Mr. Evans. Welcome to California.

-- “Among other withering points we voiced in the meeting that smashed the prejudicial notions of these Powers That Be:”

Oh, those evil Powers That Be. Great googly moogly. Okay.

-- • “The AFL-CIO rep had recently outrageously claimed that Independent Contractors were largely made up of Uber drivers, illegal immigrants, and felons. But the very presence of Ms. Kavin, Mr. Avelar, myself, and the other ICs in the meeting, plus our listing out loud numerous other fields that ICs represent -- all made minced meat out of that stupendously ignorant claim.”

Who is the AFL-CIO rep and where and when did he/she make this claim? In public? In private? In stating an official position? Of course, the claim is stupid on its face.

-- • “The Illinois Dept. of Labor rep blithely accused small businesses of hiring ICs to “cut corners” in order to undercut any competition. I could not let that stand and strongly refuted that foolish statement by giving the reasons that such businesses hire ICs: It is because maintaining full-time employees incurs countless costs that would make their businesses unviable. What they DO end up doing is providing services and goods that customers want, while concurrently enabling ICs to make a great living of their choosing. Again, no response from the IDOL rep.”

Well, if you’re going to make an accusation like that, you might as well do it blithely.

If the rep did aim that accusation specifically at small businesses, then yes, that does suggest a disturbing, perhaps intentional, naivete on his/her part. But to hold that no business—especially a large company—would, in fact, classify their employees as independent contractors to avoid the cost of employing full-time employees is similarly, perhaps intentionally, naïve.

In fact, it was the 2018 California Supreme Court ruling against Dynamex Operations West, Inc., which had been sued for reclassifying its drivers as independent contractors so that it would not have to comply with California wage orders—which impose obligations relating to things like minimum wages, maximum hours, and a limited number of basic working conditions of California employees—that led to the passage of AB 5, to codify the prevention of that practice into law.

https://law.justia.com/cases/california/supreme-court/2018/s222732.html

-- • “In my opening statement, I asked point blank, 'What business is it of the government to decide how Independent Contractors work? We are tax-paying citizens who choose this life/work style for the flexibility and freedom it offers. No one has the right to force us into living and working any other way. It is patently un-American.' This, too, was met with no reaction. But here’s their dirty little secret: Sure, unions can serve a purpose. And that’s fine if that’s what one wants. But unions across the country are losing membership. Losing membership means losing dues to fund their pensions. It means losing power. And losing the quid-pro-quo support of union-friendly politicians. Therein lies the real reason for this massive effort to get us all to be W-2 employees, thus cutting off our free will to work when, how, and for whom we choose. Independent Contractors cannot be corralled into unions. It’s easier to unionize employees.”

Oh, brother. Where to begin? Unions have a “dirty little secret”? Seriously?

To say that unions are losing membership is a bit vague. Yes, union membership declined by about 0.1% from 2021 to 2022, but it had increased by almost 2% from 2020 to 2021. So, yes, it fluctuates year-to-year and has been dropping since the union heyday of the 1950s and since its spike in 2008, but it’s actually been pretty stable the last few years.

And this is their “secret plan”? To make it impossible to be a freelancer, so that would-be freelancers will have to become full-time employees at various established businesses, where they… um… probably won’t be in unions, anyway—which doesn’t really move the needle on the union pension coffers and adds nary a vote to the totals for those nefarious, union-pleasing politicians?

Give me a frigging break.

“Honey, I’m giving up freelance writing to become an autoworker.”
“Why are you doing that, dear?”
“Because those darned union-friendly Democrats are forcing me to.”

Personally, I do think there was a time when unions were important in this country.

That time was… well, this summer, actually, when the Writers Guild struck against the American Motion Picture and Television Producers (AMTMP) to fend off a set of existential threats, some of which had to do with reasonable sharing of profits, residuals, and being able to make a living as a writer in Hollywood, and some of which had to do with the threats represented by developments in AI. After demonstrating intransigence for several months (one of the AMTMP source was quoted as saying: “The endgame is to allow things to drag on until union members start losing their apartments and losing their houses”), the two sides struck a major deal, and Hollywood is back to work.

Come to think of it, “that time” was also this fall, when health care unions struck Kaiser Permanente for issues related to understaffing and wages—and won.

In fact, “that time” is also as of this writing, as SAG-AFTRA is trying to negotiate with AMTMP, the United Auto Workers are striking to fend off existential threats to their own livelihoods.

So, we’re actually living in “that time.” Who knew?

-- “To Representative Ness’s credit, she is the sponsor of Bill HR3441 that seeks to codify guidelines for Independent Contractors to align with the longstanding ABC Test that adheres to the IRS definition – one that has been used as the standard for decades and is fair for all parties involved. Says Ms. Ness, 'It is also a way to ensure that those who work as Independent Contractors for a variety of reasons, can continue to do so in an unimpeded way.' Only since California has enacted the more complex version of the ABC Test has all this chaos ensued.”

Well, at least Ms. Ness gets credit for something.

Reminder: The ABC Test is only part of the story. The other is where and when it applies, and AB 2257 clarifies that.

-- “The fight for freelancers has been going on for four years. The hopeful news is: The enactment nationwide of the California-inspired ABC Test is currently being blocked in the Republican-controlled U.S. House, and in the U.S. Senate by all Republicans and AZ Senators Sinema (I) and Kelly (D) and VA Senator Warner (D). That’s a good thing – as long as they all stand their ground. In 2024, if Democrats win majorities in the House, Senate and keep the White House, expect the ABC test to rear its ugly head and be passed. Should Republicans win in all three branches, this whole issue will be dead in the water. However...”

Thank god for Republicans! They’re our only hope! (And blocking things is very much in their wheelhouse, so once they solve this minor internal squabbling that has left the House of Representatives without a Speaker for the first time in history, they’ll be back protecting us from unions and Blue-state ideas.)

But remember, this NOT AT ALL A PARTISAN ISSUE! People of all political leanings should see the sense in hating Democrats and unions!

-- “Blue states, such as our very own Illinois, can still enact its own rules. Hence the meeting I attended. Our legislators have to know what harm they will be inflicting on nearly 2.8 million Illinois residents who are ICs.
-- “So here’s the deal: IT’S IMPORTANT YOU VOICE YOUR OPPOSITION TO THE ABC TEST. With very little effort, you can make a giant impact. Choose any or all of the following for a course of action, and also to equip yourself with accurate information:”

And if you don’t currently have opposition to the ABC Test, well, by god, you had better go and get some! ASAP!

As far as the rest of the post goes (including links and contact information), yes, by all means, one should get involved on whatever side of whatever issue he/she chooses.

But the last clause is, perhaps, the most important—to “equip yourself with accurate information.” And let’s add to wipe off any political bias as you gear up.

In summary, the IWOC president is free to write whatever he/she pleases in his/her monthly column, but the quality of this post (or, rather, lack thereof) and egregious political bias is a black mark on IWOC. And the fact that its text was subsequently sent, verbatim, as an official IWOC email to over 900 database contacts is a disgrace.

Are we to assume that the IWOC board approved the sending of the email? If so, can we conclude that the views expressed (and the manner in which the are expressed) are the official, board-approved position of the organization?

If that’s the case, then, disclaimers notwithstanding, IWOC has somehow shed its apolitical robes, and current and future members would do well to consider the biases that now inform its leadership going forward when they consider whether to join and/or re-up.

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Confronting the Foes of Freelancers | President's Post by Laura Stigler

01 Oct 2023 12:19 PM | Laura Stigler (Administrator)

Comments

21 Oct 2023 12:40 PM | Anonymous