By Sean Higgins, Competitive Enterprise Institute
Kim Kavin is a freelance writer and an activist in the current political fight over the issue of worker classification. As co-founder of the activist group Fight For Freelancers, she has spent the last few years telling lawmakers that she’d rather not be classified as an employee. Such “for your own good” proposals don’t actually do her any good, she argues.
The irony is that Kavin and her group’s members are supposedly the types that liberal activists claim they are trying to protect: ordinary workers who aren’t getting the benefits and protections due to an employee under federal law. This was, however, their own choice. Kavin said she preferred being a freelance writer so she could be her own boss.
A lot of lawmakers just don’t get this, either because they don’t grasp the complexity of the issue or they just don’t believe Kavin. Some are even hostile. Pro-union lawmakers view freelancers like Kavin less as people to be protected and more as a problem to be solved. The federal rules for organizing unions were written with employees in mind and exclude independent contractors. That’s the underlying reason for the left’s push to reclassify contractors as employees.
“At almost every turn since 2019, it has been made clear to all of us independent contractors that policy-making about us is going to be done to us by people who show nothing but disdain for us, instead of in reasonable, respectful cooperation with us,” Kavin testified Wednesday before the House Education and Workforce Subcommittee on Workforce Protections.
The main legal framework for reclassifying workers is California’s so-called three-pronged ABC test. The second part of the test says a worker cannot be an independent contractor if the work they are doing for the employer is the same type of worker the employer customarily does. This is insurmountable hurdle since it means, for example, a freelance writer cannot submit articles to a publisher, nor an artist work with a gallery or a musician work at a recording studio.
During the hearing, subcommittee chair Representative Kevin Kiley (R-CA) remarked that under California law, workers across all different industries “were told they were no longer allowed to practice their profession and serve their clients as they’ve been doing their whole careers…” and that “their only option was to find a single hiring entity to monopolize their services and make them a W-2 employee.”
Kavin also told of numerous meetings her group had held with lawmakers only to discover the legislators didn’t have open minds on the issue. “Some people in positions of power simply don’t like the existence of independent contractors who cannot, per federal law, be unionized,” she said.
The most memorable anecdote involved a group phone call with the staff of Senator Patty Murry, a Washington Democrat and former chairwoman of the Senate Health, Education, Labor and Pensions Committee. She remains a top member of the committee. A Fight For Freelancers representative and working mom named Karen explained that she had had 30 clients previously as a freelance writer. This worked for her because it gave her the flexibility to also take care of her kids.
“Karen explained to [Senator Murray’s] aide that the best-case scenario – forget about her income being wiped out — if this ABC test goes nationwide was that she now has 30 part-time bosses. She asked this aide, ‘How is a human being supposed to do anything with 30 part-time bosses? How could you schedule so much as a bathroom break let alone function?’” Kavin recalled.
“And this aide said to us, “I have no problem with that outcome.’”
Sean Higgins is a research fellow at the Competitive Enterprise Institute specializing in labor and employment issues.