The Lone Voice

What really happened with Minnesota's task force on worker misclassification? A Q&A with independent contractor Brittany VanDerBill.

In 2023, Minnesota Attorney General Keith Ellison formed a task force on worker misclassification, saying he wanted “to gather the best thinking about the problem and make practical, workable recommendations.”

Only one independent contractor ended up being a member of this 15-person task force that was created to make recommendations about independent contractors.

Her name is Brittany VanDerBill. She started her own business in 2015, offering social media marketing services at first, and adding a writing client in 2016. In 2019, she began offering writing services to clients in a variety of industries. One of her specialties is personal insurance, based on the five years she spent as a licensed insurance agent.

I met Britt through Fight For Freelancers, the grassroots coalition I co-founded in 2019 to stop freelance busting. She has been a dedicated and thoughtful voice from Minnesota, volunteering her time to engage with lawmakers and others in an effort to protect independent contractors in all kinds of industries.

Brittany VanDerBill

She’s doing important advocacy work, given that Minnesota Governor Tim Walz recently signed a law that increases scrutiny and possible liability for companies that work with independent contractors. It was rumored that Minnesota lawmakers were preparing to introduce a copycat of California’s disastrous freelance-busting law, but the recent election broke Democratic trifecta control of the legislature and governor’s mansion, making such a bill unlikely to pass.

Still, the task force has been drafting recommendations—and the way they were created tells us a lot about whose interests they are intended to favor.

Spoiler alert: It does not appear to be the majority of independent contractors.

Here’s my conversation with Britt about what really happened on the Minnesota task force, from her perspective as the only independent contractor in the room.

What is the Minnesota Attorney General’s Advisory Task Force on Misclassification, and how did you become a member of it?

Attorney General Keith Ellison was quoted in his office’s press release as saying, “I’ve created this task force to gather the best thinking about the problem and make practical, workable recommendations to the Legislature, State agencies, other levels of government, industry, nonprofit organizations, and advocates about how we can put an end to the problem.”

My take? The term “worker misclassification” has been code for “destroy independent contracting” in other states like California as well as on the federal level. Because Minnesota tends to follow in California’s policy footsteps, I suspected we’d see this effort pop up here, so I set an alert to receive vacancy notices for state boards. Sure enough, the task force creation was announced in July 2023.

I knew we needed an independent contractor on that task force, so I applied for one of the three roles from outside the Minneapolis-St. Paul region (it turns out I was also the only person on the task force located outside that region). My state representative put in a good word for me when I told him I had applied, and ultimately, I was appointed to the task force.

That is really smart. How can other people do that? Is it like setting a Google alert to receive notices when certain words or phrases pop up online?

You could definitely set a Google alert for “worker misclassification.” Otherwise, you could try searching “Secretary of State vacancies” for your state. In Minnesota, that brings up a webpage with all the board, task force and commission openings.

You might have to do a bit of digging, but you’ll likely find an option to sign up for emails when there are openings, which is how I found out about the task force.

We’ve seen so many of these so-called task forces and expert panels come into existence without any independent contractors on them at all. Instead, there’s usually a heavy union influence, either with actual union organizers or people from union-backed think tanks.

Did you see that same thing in Minnesota? Did unions influence the task force agendas and conversations?

Here’s where things get tricky. What I experienced on the task force absolutely points to heavy union influence. On the other hand, unions themselves were never on the agenda, so that makes it hard for me to point to them specifically as influencing the task force.

One concrete thing is the makeup of the task force. There were 15 voting members, with myself being the only person representing businesses and freelancers. Five of those 15 members were from unions or organizing centers. Then we had two ex-officio (non-voting) members, one of which was another union representative.

During our 16 meetings, we had several presenters. Many of those presenters, including the National Employment Law Project presenter, had a similar message: The ABC Test is the gold standard for dealing with worker misclassification.

That ABC Test is at the heart of California’s freelance-busting law, which unions and union-backed think tanks like NELP championed there too.

I actually sat right next to that same NELP presenter who testified before your task force in Minnesota, Laura Padin, when I testified before Congress in 2023. She testified in Washington, D.C., that federal lawmakers should pass the PRO Act, which would have spread California’s ABC Test nationwide.

And where I live in New Jersey, our governor’s report on misclassification cited NELP research too.

What else did you see regarding union influence on the Minnesota task force?

If you dig into the funding sources behind some of the presenters, you’ll see plenty of support from unions. For instance, NELP is a nonprofit that has received funding from the AFL-CIO and Service Employees International Union—both of which had members (one official and one ex-officio) on the task force.

We heard from a presenter at CTUL, a worker organizing center that had a seat on the task force. North Star Policy Action presented as well, mentioning several data points around payroll theft—and many of those data points were “assumptions” or “approximations,” according to the presenter himself. North Star Policy Action was founded by four labor organizations, including the AFL-CIO and LIUNA Minnesota & North Dakota, each of which had a voting member on the task force.

Perhaps the most explicit statement showing that unions drove the task force agenda came from a private “celebration” event hosted by Governor Tim Walz and Lieutenant Governor Peggy Flanagan. Task force members were invited to the event to celebrate new misclassification legislation that was based in part on a recommendation from the task force. I attended out of morbid curiosity; I was not there to celebrate the misclassification legislation.

Attorney General Ellison was there, along with Representative Emma Greenman, the task force co-chair; Senator Clare Oumou Verbeten, a task force member; and Commissioner Nicole Blissenbach of the Department of Labor & Industry, among others. During the speeches, it was announced that weekly strategy meetings had been held with key players to craft the new legislation. Notably, a few of the unions on the task force were named as participating in these strategy meetings that occurred without the full task force.

Did you feel like the goal of the Minnesota task force was not so much about stopping misclassification, but instead to try and reclassify independent contractors as unionizable employees?

In a word, yes.

I got the sense numerous times that the attitude among many other members was that businesses utilizing independent contractors were only doing so to avoid paying taxes, workers’ compensation or unemployment insurance. The other task force members did not seem to care much about the harm that would come to legitimate independent contractors from the ABC Test, despite evidence from written and verbal testimonies.

The ABC Test, for most of the life of the task force, was held up as the be-all, end-all way to stop misclassification, until the messaging shifted and task force members were suddenly reluctant to name or discuss the ABC Test outright.

A screen shot of what I saw on my computer when I logged into one of the meetings of the Minnesota task force about independent contractors.

What are some examples from the meetings that made you feel like the goal was to try and reclassify independent contractors as unionizable employees?

Whenever I brought up the fact that independent contracting offers freedom and flexibility, other task force members or agency members would immediately try to downplay and discredit that argument.

One task force member tried to explain to me that there was nothing legally preventing an employer from offering an employee the same flexibility as independent contractors. Sure, legally that could happen. There’s also nothing legally stopping an employer from offering every employee their own private Cadillac Escalade and personal chauffeur, either. Will that happen? Hell no, not for those of us who live in the real world.

The idea that independent contractors choose to be independent contractors was another thing that constantly got shot down whenever it was brought up. They kept telling me that choosing to be an independent contractor, or to work with one, is not a factor in determining status.

The idea that most of us are miserable or being forced into self-employment is completely at odds with reality. Just this past November, the U.S. Bureau of Labor Statistics reported: “As in prior surveys, independent contractors overwhelmingly preferred their work arrangement (80.3 percent).”

I often got the impression that the task force members wanted to make it harder to be an independent contractor because independent contractors don’t pay unemployment insurance or workers’ comp. In other words, they want to find a way to collect more revenue from us if they can’t do away with us altogether.

Our North Star Policy Action presenter also essentially made the assumption that independent contractors without employer-sponsored health insurance are going to turn to public assistance, which is a drain on society.

Again, I feel the need to point out reality, which is that most independent contractors do have health insurance. According to that same recent report from the U.S. Bureau of Labor Statistics, “74.3 percent of workers whose sole or main job was contingent had health insurance.”

And far from turning to public assistance, many of us independent contractors are actually being forced to pay outrageous rates. That’s something federal lawmakers are working on right now.

I repeatedly asked the task force and presenters for data when they described certain industries that are “highly impacted” by misclassification. I was told I’d get that data but never got it, so I kept asking.

I finally learned that there is no data—the task force is basing this classification of highly impacted industries on anecdotes and things they hear.

It sounds eerily like federal lawmakers claiming that misclassification costs workers nearly $4 billion a year in lost wages and benefits, but the U.S. Department of Labor, after four years of prioritizing enforcement of misclassification, only actually recovering $41 million.

Then there’s the infamous outburst from our ex-officio member representing the SEIU. Your testimony directly calling out the union agenda and biased makeup of the task force elicited a couple of blowups, one of which involved calling your term freelance busting “bullshit.”

Amazingly, it’s all on video. That moment of honesty happened because the SEIU representative was really angry about the testimony I’d given. As we all know in life, sometimes, angry outbursts are when the real truth comes out.

The guy actually said that he believes union busting is real, but freelance busting is bullshit. We all knew this hypocrisy was at play, but the Minnesota task force was the first time we got a unionist to admit it for the whole world to see. Anti-independent contractor policymaking is coming from organizations like the SEIU, AFL-CIO and Teamsters, which are totally disregarding our freedom to choose how we earn a living—exactly the same behavior they say is wrong about anyone they perceive as denying the choice to join a union.

It all makes task forces like this one seem utterly ridiculous.

Perhaps most telling of all is the reactions and conversations I had with others outside of the task force who were following the process. Experienced business leaders, lobbyists and others called the task force a “sham task force,” a “kangaroo court” and my personal favorite, the “task farce.”

People way more experienced at this than me saw right through the whole thing from the get-go.

What were some of the task force’s key recommendations that could influence lawmakers on independent-contractor policy in Minnesota?

In January 2024, the Department of Labor & Industry presented its ideas for improving compliance and strengthening enforcement authority around worker misclassification. On February 7, the task force voted to send this policy proposal summary from DLI to the state legislature as a recommendation.

As it turns out, the task force was given a high-level overview of DLI’s proposals. Think “million-foot view.” The bills that were initially introduced were over 30 pages long and incredibly heavy-handed. While amendments were made, the ideas got shoved into a gigantic omnibus bill at the end of last session.

If you look at page five of DLI’s task force presentation, you’ll see it says one thing they want to do is: “Focus, update, and streamline IC multi-factor analysis for the construction industry.” The actual legislation turned an existing nine-factor independent contractor test into 14 factors, many of which have subfactors. Making it more tedious and difficult to be an independent contractor in the construction industry is not my definition of “streamlining,” and we were sold a bill of goods that wasn’t representative of the end result.

At our final meeting on December 20, 2024, the task force voted on a multipage set of recommendations. A variety of vague recommendations were included in this document, which wasn’t posted to the task force website publicly until sometime after late afternoon on December 16. We also don’t know where, exactly, each of these recommendations will go. To the legislature? To state agencies? To municipalities? It’s unclear.

Among many troubling inclusions, the document includes a recommendation for Minnesota to adopt presumption of employment for all its classification tests. In other words, everyone making money is assumed to be an employee unless proven otherwise.

The document also recommends that Minnesota should adopt one classification test that takes a “threshold decision-rule approach.” Essentially, page five of this document outlines something that sounds eerily similar to the ABC Test, without naming the ABC Test outright.

I thought the same thing when I read page 5 of those recommendations. The language from the Minnesota task force states: “Create a user-friendly classification test that provides clear, consistent, and functional direction that workers and the organization or individuals purchasing the labor can use to determine proper classification and compliance with state laws.”

For starters, the language about “labor” and “workers” fundamentally undermines the entrepreneurial intent of independent contractors who hang out a shingle, go into business for themselves, and establish LLCs and S corps. The language assumes an employer-employee relationship instead of a small-business relationship—at a time when the vast majority of the country’s small businesses are solopreneurs.

I don’t know about you, but as a freelancer since 2003, I don’t think of myself as a “worker” selling “labor.” I have never heard any of my clients use those terms, either. They think of me and treat me as a partner, not as an underling.

This language was suggested by a task force member to sort of generalize terms or definitions to get us all on the same page. But I agree with you, I definitely don’t use that language, and it doesn’t really apply to real-world business relationships.

As an independent contractor, did you agree with the task force’s recommendations?

I voted for the DLI recommendations, but after reading the legislation that followed, I regretted my vote.

I voted against the multi-page final recommendations in December. There are potentially some decent ideas in that document, but given how the last recommendation process went, I could not vote for any recommendation brought forth by this task force.

In addition, I vehemently disagree that creating new laws and/or implementing the ABC Test (or some copycat version of it) will do anything to help misclassified employees. In fact, we know the ABC Test does not create jobs. It actually drives both W-2 and self-employment numbers down.

So, no, I absolutely do not agree with the task force’s recommendations.

In New Jersey, after our governor’s report on misclassification was published, all kinds of legislation was introduced that targeted the independent-contractor business model, up to and including a bill that would have copied California’s disastrous Assembly Bill 5.

Do you expect freelance-busting legislation in Minnesota too?

The good news I’m hearing is that any ABC-style test is unlikely to pass this session because of the election results. As we all know, while those of us fighting for the right to run our businesses aren’t trying to take political sides, this issue often comes down to a vote along party lines (with exceptions, of course). Because the Minnesota House was tied, and currently the GOP has a temporary one-seat majority, it’s not likely that this type of legislation will be rushed through like it would have been last session when the DFL had trifecta control in the state.

However, I remain skeptical that this issue is dead. I wouldn’t be surprised if legislation is still introduced in this or a future session that includes presumption of employment and/or some sort of ABC-style test.

What else should readers know about your experience, so they can be better prepared to fight freelance busting in their own states?

Any time you hear the term “worker misclassification,” train your brain to think “anti-independent contractor” until someone proves otherwise to you.

Also, get proactive. Pay attention to what’s going on in your state legislature. Minnesota in general has been hostile toward business, so the anti-independent contractor rhetoric is not surprising. But paying attention means you have a better shot at getting directly involved if the “worker misclassification” movement comes to your state.