If We're Divided, They Conquer

Independent contractors are repeating the mistake that weakened the freelance-busting resistance in California. We can, and must, do better nationwide.

Real-estate agents have launched a social-media campaign to try and get Congress to protect their status as independent contractors. They want lawmakers to pass a bill—H.R. 5419—that says no matter what the freelance-busting crowd tries next, the term “employee” cannot mean “any direct seller or qualified real estate agent.”

Forget about the truckers, traveling nurses, translators, interpreters, wedding planners, graphic designers, freelance writers and everybody else who is still in the crosshairs of the freelance-busting brigade.

The real-estate agents are trying to use their lobbying muscle through the National Association of Realtors to save themselves alone.

This is exactly what the freelance-busting crowd wants in their quest to restrict or eliminate our right to choose self-employment. If they can sideline and silence the professions that are most able to fight, then the rest of us lose, and overall, they win.

We know this because of the freelance-busting battles of 2018-20 in California and New Jersey.

In California, the freelance busters divided independent contractors by profession, and they won.

In New Jersey, multiple professions stood shoulder to shoulder, and we won.

For a reminder about what happened back then—and about why, as independent contractors, we need to fight together—I asked Karen Anderson, the founder of Freelancers Against AB5, to join me in this conversation.

Let’s start by giving people a quick overview of California’s Assembly Bill 5, and why you created your grassroots group, Freelancers Against AB5.

Assembly Bill 5 is a law that mandates all workers in California are employees unless proven otherwise. The law is based on a strict ABC Test that most independent contracting relationships cannot pass.

I created my Facebook group, Freelancers Against AB5, as a place for Californians to share what was happening to them. Thousands of stories of lost livelihoods came pouring in just months after Governor Gavin Newsom signed AB5 into law on September 18, 2019—even before the law went into effect on January 1, 2020.

Didn’t some of the professions with established lobbyists, like real-estate agents, manage to get exemptions?

Initially, about 60 professions received full or conditional exemptions. Among the chosen ones were doctors, lawyers, dentists, physicians, veterinarians, psychologists, real-estate agents, architects, private investigators, dog walkers, engineers, grant writers, insurance agents, direct salespersons, commercial fishermen, accountants, licensed cosmetologists and travel agents. Media professionals had a partial exemption but were limited in the number of projects they could do. This created a huge backlash among freelance writers, many of whose clients dumped them. 

Meanwhile, hundreds of categories of professions were left out entirely—among them truckers, musicians, translators, interpreters, real-estate appraisers, healthcare professionals, transcribers, pharmacists, filmmakers, manicurists, massage therapists, physical therapists, occupational therapists, chiropractors, optometrists, paralegals, notaries, golf caddies, performing artists and countless more.

After AB5 went into effect, the professions without exemptions had to figure out how to get them. What a nightmare for people with no idea how to do lobbying or advocacy work.

The professions and industries with the most clout at the Capitol or with the money to hire lobbyists were able to meet with the bill’s author, then-Assemblywoman Lorena Gonzalez, who had the power to pick winners and losers. Nine months later, there was a so-called “cleanup” bill (Assembly Bill 2257) to attempt to “fix” the myriad problems as well as to add a couple dozen new exemptions.

The law is as convoluted as ever, however, and all exemptions come with caveats. Some have up to 11 requirements for certain professions to even qualify for their exemptions.

And hundreds of professions are still left with no pathway to an exemption whatsoever.

You saw this happening and thought, wait a minute—we’re being divided and conquered one profession at a time. It was a really impressive realization in that fog of war, when everybody was just trying to save themselves. 

AB5 created an “every man for himself” situation. The media focused primarily on the app-based rideshare and delivery companies like Uber, Lyft and DoorDash, as well as the trucking industry and freelance journalists, to the exclusion of the hundreds of other adversely affected professions.

I started my Facebook group in November 2019 as a public clearinghouse of stories from all the professions. Within a few months, I had over 19,000 members who posted thousands of stories of destruction and lost livelihoods. We identified more than 600 categories of affected professions.

We held rallies, created public service announcements and video testimonials, organized protests and social media campaigns, made a lot of noise, and worked with legislators in the hopes of repealing AB5 altogether.

So the lesson learned is to fight as independent contractors from the start—to protect the big-picture right we all have to choose self-employment, in every profession. 

Yes, but in California, most people didn’t realize this until it was too late to coalesce an effective opposition force under one umbrella. Those who got exemptions wanted to protect their exemptions, not fight the law any further. The divide-and-conquer strategy of pitting professions against other professions worked. 

Some industries, like trucking, fought it in the courts, and the rideshare companies funded a ballot initiative, Proposition 22, that asked voters to decide if drivers could remain independent contractors—again, only fighting for one industry. 

In the end, it took a grassroots movement of underrepresented freelancers across a vast swath of professions to raise awareness about the collateral damage of these freelance-busting policies.

As it stands now, it would take a coalition of major industries and business associations to join our freelancer movement and raise the millions of dollars needed to initiate a ballot initiative to repeal AB5 for all.

Here in New Jersey, we only had a vague idea that any of this was happening in California. My friends and I, all of us freelance writers, heard through our professional organization, the American Society of Journalists and Authors, that there was a problem for freelance writers in California.

That’s how we knew what AB5 was, and that we had to stop it when our state tried to pass a copycat called New Jersey Senate Bill 4204.

I remember freelancers like yourself from out of state watching in horror via social media at the unfolding disaster of AB5 in California. The ASJA and the National Press Photographers Association filed a lawsuit against AB5 in California.

On the issue of our freedom to choose self-employment, Californians are the canaries in the coal mine. Everyone should heed the cautionary tales of AB5 from California.

I remember social media going crazy at that time too. At first, we were just trying to figure out what to do about New Jersey’s AB5 copycat bill. It became hard to keep track of all the direct messages flying around, so freelance writer Jen Singer created a Facebook group. That group eventually evolved into a template for our nationwide Facebook group, Fight For Freelancers USA.

To those of us in California, it came as no surprise that copycat bills were popping up in other states. There is no remorse at all about the destruction they cause. We are thankful to have allies across the country to fight these putrid, destructive bills and regulations.

At times, it feels like Whac-A-Mole, but it’s imperative that we remain a thorn in the sides of these lawmakers for the long haul.

One thing that helped to launch us into overdrive in New Jersey was when the freelance writer Jen Miller wrote an op-ed. I don’t think any of us had ever done that before, either. Her piece in the Philadelphia Inquirer was great.

It really angered the freelance-busting brigade. We didn’t even understand the power of the people attacking us back then, but we thought, OK, well, that seemed to work, and we’re writers, so let’s write more. We ended up blanketing every newspaper in New Jersey with op-eds and letters to the editor, and we wrote national ones too, including mine in The Washington Post.

That’s how we got involved with the other types of independent contractors in New Jersey. They saw our op-eds that mentioned our Facebook group, and they joined us.

It’s so important to raise our voices. I personally have written over 20 op-eds about AB5 for various publications ranging from the Orange County Register to the Washington Examiner. I’ve been interviewed by dozens of publications, podcasts and radio shows, too.

All of that led to the hearing where you and I testified before Congress in April 2023.

That’s basically how I got to Congress as well. Making noise.

Here in New Jersey, the freelance writer Debbie Abrams Kaplan had a Mailchimp account. She knew how to send out press releases. I had a WordPress account and knew how to build a basic website. Karon Warren, who is a writer in Georgia, raised her hand and offered to help, and she’s great at Twitter.

That’s how Fight For Freelancers USA was created, and that’s the group I represented before Congress.

It was such a help when Fight For Freelancers launched because I felt like we had formed the East Coast flank and West Coast flank of the freelance-busting fight.

It has also been encouraging to see Fight For Freelancers groups launch in states like Minnesota. My interaction with the Minnesota group on Facebook led me to testify in front of their task force earlier this year about the cautionary tale of AB5 in California. We all are on the same team.

Thank goodness, right? So many independent contractors are now doing things we never imagined, but that are currently necessary to protect our income and careers.

I know that I never thought about doing anything like writing an amicus brief to submit to the National Labor Relations Board. I couldn’t even pronounce amicus when the NLRB announced that it was accepting briefs on this issue. But I wrote it, and the other leaders of Fight for Freelancers helped to edit it, and a bunch of our group’s members helped to think of other groups that might co-sign it. It turned out surprisingly good—and then it evolved even more. Pro bono attorneys helped us to reformat it, and it became a U.S. Supreme Court brief representing more than 275,000 self-employed Americans.

With all these things, we keep learning the lesson that people will naturally come together and fight hard to protect our right to choose self-employment, to freelance, to have a side hustle—but only once they realize that right is being threatened, and once they’re shown a way to fight back.

Having written a letter signed by 8,000 freelancers in California to try and repeal AB5, I know how much work it takes to join forces with legislators or lawyers. The amicus brief you guys wrote was truly impressive, and opened up the possibilities that we have more power than we think at the grassroots level.

When all is said and done, we know a lot more about the details of these laws than the lawmakers themselves. 

That’s so true too. You and I both saw that when we testified before Congress.

I studied so hard before that hearing, to try and remember all the important details. Then we got there, and a primary sponsor of the Protecting the Right to Organize Act—which would spread the ABC Test from California’s Assembly Bill 5 law nationwide—couldn’t even articulate the difference between ABC and AB5.

Here’s a clip of that, of U.S. Rep. Bobby Scott, D-Virginia, trying to question the Democrats’ own witness that day. Even she seems confused, as if he has no idea what he’s talking about. I’m sitting next to her, shaking my head in disbelief:

The lesson from that day in Washington is that independent contractors can run circles around the freelance-busting brigade if we all just show up and engage.

Whenever I speak about AB5, I always make it about the hundreds of professions affected. I created an archive of thousands of personal stories from my group that journalists can use as a resource.

I’m also a liaison for others to speak out, such as when I was an invited panelist at a hearing by the California Advisory Committee for the U.S. Commission on Civil Rights. I brought on board members from my group to testify, including interpreters, translators, healthcare professionals, musicians, filmmakers, yoga instructors, writers, truckers and even exotic dancers.

I think most people are surprised to find out just how many professions are affected by these policies. 

It’s truly astounding, the breadth of Americans who are affected—tens of millions of us who earn some or all of our income this way.

The same way you and your group’s members compiled people’s stories, our group’s members compiled all the studies and research on the Fight for Freelancers USA website. All of it helps with things like the video interview that you and I did at the U.S. Capitol after the hearing with the biggest champion for independent contractors in Congress, U.S. Rep. Kevin Kiley, R-Calif.:

What those of us from California and New Jersey see so clearly now is the key thing that we need every self-employed American to realize, all across the country. Our side’s biggest weakness is also the freelance busters’ biggest strength. If we change this one way of thinking, we defeat them every time.

Most people see themselves as their professions first. We call ourselves writers, truckers, real-estate agents.

But because of the way we are being attacked, we need to think of ourselves first as independent contractors. Our opponents are coming after our freedom to be our own boss in any and every profession.

They have co-opted the term “independent contractor” and turned it into a pejorative by framing the issue around “exploited gig workers.” In fact, most of the people harmed by these policies are legitimate independent professionals, solopreneurs and self-employed individuals who don’t want to be employees.

The powers that be want as many people as possible turned into employees who can be unionized. It affects everyone from all demographics and walks of life.

I couldn’t agree more. Everyone has the right to choose how we earn a living, and no politician should be trying to take that freedom away. 

That’s for sure. These freelance-busting policies are hurting us, not helping us.

Just like in California, real-estate agents at least see that this is a fight we need to be engaged in. They’re only fighting for themselves, which we would like to change, but they are showing a proactive way to engage in the fight. 

Imagine what would happen if we could get the real-estate agents to bring their lobbying power, the freelance writers to bring our media and grassroots power, the truckers to talk about protecting the supply chain, the rideshare drivers talking about how they fill transportation-system gaps, the traveling nurses explaining how they keep people healthy, the translators discussing how they help in places like the courts—everybody needs to be working together to protect and preserve the right we all share to choose self-employment.

At this juncture, it only makes sense that all industries and professions join together as a collective to push back against the endless attacks on self-employment. There are already laws in place that address actual misclassification of workers. We don’t want to be swept up in a dragnet that destroys the entire independent workforce.

Policymakers must protect those of us who want to live the American dream by being in business for ourselves.