The Great Rebranding

As the Democratic National Convention begins, the language of the same old freelance-busting policy is being shape-shifted. It's now "freedom to join a union."

Can you articulate the difference between a circle and a square?

It seems easy enough. A toddler can distinguish between the two shapes. We all can intuitively understand that a circle is round, while a square has corners.

But what about articulating the difference? Can you do that?

If some math whiz came along and told you that one shape is a closed plane curve with every point being an equidistant angle, while the other has four equal sides and four right angles, you might start to feel your eyes roll back in your head, the same way mine did in high school calculus class.

But at the end of the day, you’d still know the difference between a circle and a square.

You’d understand that a circle is not a square, no matter what kind of highfalutin words the math whiz flung at you next.

Sure, he might start yammering about quadratic equations and continuous functions. You’d respond with something like: I don’t know about all that, dude, but I know a circle ain’t no square.

This is precisely what we all need to do as the freelance-busting brigade throws new language at us in their quest to change the definition of an independent contractor—now, by trying to convince us that we need the freedom to join a union.

First, A Little Background

Independent contractors and employees are different. We’re like circles and squares. Yes, we’re both in the same family. Circles and squares are both shapes. Self-employment and traditional employment are both ways we can earn a living.

But we’re not the same.

Independent contractors are our own bosses.

Employees report to bosses.

Independent contractors are small-business owners.

Employees are unionizable workers.

Saying that an independent contractor should be more like a unionizable employee is like saying a circle should be more like a square.

That’s precisely what the freelance-busting brigade has been doing. They’ve spent years now attempting to change the definition of an independent contractor so that we’re more like unionizable employees.

Their big sales pitch has been that this rewriting of definitions is necessary to stop misclassification. This is the highfalutin word—misclassification—that they’ve been tossing around like the math whiz.

They told us misclassification was out of control. Their lobbyists said it so often that as of summer 2020, more than half the states in the country had created some sort of task forces to address misclassification.

California even enacted a big misclassification law known as Assembly Bill 5. Governor Gavin Newsom said at the time:

“Assembly Bill 5 is landmark legislation for workers and our economy. It will help reduce worker misclassification—workers being wrongly classified as ‘independent contractors,’ rather than employees, which erodes basic worker protections…”

Landmark legislation!

We’re stopping misclassification!

Boy, did that sound sweet to a lot of people who did not understand the ramifications.

Other elected officials quickly adopted that same language. Where I live in New Jersey, our state Senate president, Steve Sweeney, said this about a copycat bill that he tried to get through:

“This is a pro-worker bill for the new gig economy. It will codify into law existing regulations and close a loophole that has allowed for the misclassification and exploitation of some employees. It’s all about protecting the rights of workers.”

Despite his claims about “protecting” people by trying to copy the California law, Assembly Bill 5 was hurting legitimate independent contractors. When we pointed this out in New Jersey, Sweeney wrote an op-ed comparing us to Russian operatives trying to interfere with elections.

Challenging the narrative of misclassification was deemed misinformation.

But we were right all along. Today, economists have shown that on average, for affected professions in California, self-employment decreased by 10.5% and overall employment decreased 4.4 percent.

Economists have to say “affected professions” because California’s Legislature, facing enormous public outcry, also passed an emergency measure that ultimately exempted more than 100 professions from the law, so people could keep earning a living.

I believe the math whiz might call that a “job killing” policy.

That’s how horrible the outcome is when you try to force circles to become squares.

Where We Are Today

None of that has stopped the freelance-busting brigade’s big-picture quest to unionize as many of us as they can. They’ve also been using the same word, misclassification, to push federal legislation called the Protecting the Right to Organize Act. It’s a bill in Congress that would apply California’s freelance-busting regulatory language nationwide—with no exemptions for any professions.

Here’s how the AFL-CIO describes the need for the PRO Act:

“Employers often misclassify their employees as independent contractors, thereby excluding their workforce from the [National Labor Relations Act’s] protections. This allows employers to ensure their workers will not come together to form a union and negotiate for better working conditions under the NLRA.”

Lawmakers like U.S. Senator Patty Murray, D-Washington, a leading voice in support of widespread reclassification, uses similar language:

“Murray is a lead sponsor and is fighting to pass the Protecting the Right to Organize (PRO) Act, which, among other things, would close loopholes that allow employers to misclassify their employees and deny them protections under the law.”

So far, the PRO Act and has failed to become law. The freelance-busting brigade keeps crashing into reality. Just as we saw in the states, the truth eventually comes out that most independent contractors are not actually misclassified.

In fact, study after study shows that most self-employed Americans wish to remain our own bosses. New union-backed research yet again confirms that almost no independent contractors are turning to unions for help on this matter.

In other words, the language of misclassification isn’t working out the way the freelance-busting brigade hoped it would at the federal level.

Thus, a shift in the sales pitch is now being attempted.

They’re ditching the word misclassification and using the word freedom to describe plans to reclassify us as unionizable employees.

‘Freedom to Join a Union’

Vice President Kamala Harris is leading the charge on this language shift from the bully pulpit of her presidential campaign:

Harris has been aligned for years with the freelance-busting brigade, so much so that it recently helped to determine her running mate. She considered tapping Senator Mark Kelly of Arizona for the role, but the unionists cried foul. They’re still upset that, back when Kelly refused to co-sponsor the PRO Act, he quite reasonably said:

“I do have some concerns with the legislation, specifically things about who qualifies as an independent contractor. Sometimes employers often use that to their advantage. In other cases, I do think people should be able to be independent contractors.”

Challenging the narrative of misclassification did not work out well for Kelly, either. With the urging of the freelance-busting brigade, Harris instead named Minnesota Governor Tim Walz as her running mate. Walz is not just a supporter of union-backed policies; he’s a guy they call their “union brother.”

Now, Harris and Walz are talking in their stump speeches about the freedom to join a union—as they push the same old freelance-busting policy the unionists have been trying to get through for years.

You can clearly see the shift if you look at the language from a few years ago and compare it to today.

Here’s how Vice reported on then-Senator Harris’ stance back then. She was supporting a federal bill to implement regulatory language called the ABC Test. It’s the same language that’s at the heart of the PRO Act today:

Here’s what Harris is saying today on the campaign trail, about enacting the same exact ABC Test nationwide:

And here’s Governor Walz, echoing that message of freedom by saying the PRO Act will “remove barriers” to joining a union:

We stand for freedom!

We will remove barriers!

Boy, does that sound sweet to a lot of people who do not understand the ramifications.

A Circle Ain’t No Square

The goal of the freelance-busting brigade has not changed. The ABC Test in the PRO Act remains the same. It’s still an attempt to reclassify legitimate independent contractors as unionizable employees, following California’s disastrous lead.

And lest there be any accusations about spreading misinformation, here is the Democratic party platform, which explicitly calls for the ABC Test:

This is the opposite of giving us the freedom to make our own choices.

It’s promising to take away our freedom to choose self-employment.

Nonetheless, the great rebranding of this deeply misguided policy is well underway—with improved language that’s likely to fool a whole lot more people this time around.

Freedom may sound better than misclassification, but the truth remains the same.

Don’t let anybody tell you otherwise.

A circle ain’t no square.