'Their Goals Here Are Not Benign'

Congress wants answers on efforts to restrict independent contractors. In this Q&A, U.S. Rep. Kevin Kiley of California explains what to expect next.

U.S. Rep. Kevin Kiley, R-Calif., has been a champion for independent contractors ever since he was a member of California’s state Legislature. He was a leading voice in trying to stop the state-level Assembly Bill 5, and since being elected to Congress, he has continued trying to protect everyone’s freedom to choose self-employment.

Now, American Trucking Associations has named him a Trucking Champion, specifically for his work in trying to protect independent contractors in that industry.

“He has emerged as the most outspoken and effective champion of independent contractors in the nation’s capital,” the ATA wrote. “For this reason, the American Trucking Associations is proud to name Congressman Kiley a Trucking Champion, an elite group of members of Congress who have gone above and beyond for the 8.5 million men and women employed in the trucking industry.”

I caught up with Congressman Kiley today to discuss that honor, and to learn what we can all expect to happen both before and after the election with regard to independent-contractor policymaking.

Congratulations on the American Trucking Associations naming you a Trucking Champion for your leadership in protecting independent contractors. I don’t think people realize how much of California’s supply chain, as well as our national supply chain, is dependent on owner-operator truckers.

What’s your sense in Congress about other lawmakers and their general level of understanding when it comes to the crossover between supply-chain issues and independent-contractor policymaking?

I think there are some that certainly do understand, and that have highlighted truckers as an example of a profession where what’s happening with independent contractors could have a particularly disastrous impact, if we take so many truckers off the road.

It’s a somewhat nuanced issue, about independent contractors, and some people who have an agenda have managed to confuse the issue. There are hundreds of professions affected by this current assault on independent contractors, but trucking will have an impact on all Americans.

What do you mean when you say some people who have an agenda have managed to confuse the independent-contractor issue?

There are some who have made this campaign that began with AB5 in California, and have recently made a national move with this independent-contractor rule at the U.S. Department of Labor, they make it seem like it’s about protecting workers, but what it is, it’s really attacking workers.

Surveys show that 85 percent of independent contractors prefer that status, and here they want to take that status away. With AB5, we saw people lose their income altogether. There is this political agenda that makes it seem pro-worker when it is really anti-worker.

The American Trucking Associations, in its announcement about your Trucking Champion honor, mentioned that you collaborated specifically with Women In Motion. That group promotes women in trucking.

Studies show that in all kinds of industries, many women who choose to be independent contractors say they are physically healthier, psychologically healthier and overall happier. Are you seeing that in trucking too?

I don’t know if they had that specific set of data, but I think it’s very much consistent with the testimonials they gave.

This is a profession where the independent-contracting model has allowed women to become independent owner-operators, to provide for their families, to be small-business owners themselves. Taking that right away from them would make all of that impossible for them.

That’s one of the main purposes of providing the option of working as an independent contractor. It enables work-life balance. It enables flexibility. It enables people with certain obligations in their life or personal challenges—it allows the work experience to be integrated more practically.

Forcing everyone to go into a much more rigid 9-to-5, W-2 workday takes a lot of opportunity away.

Independent contractors in California continue to talk about challenges they’re having earning a living because of the state-level law called Assembly Bill 5. You have fought that law tooth and nail in your continuing efforts to try and protect everyone's freedom to be self-employed.

Has there been any movement in the effort to try and get that income-destroying and career-killing law repealed?

I think the supermajority, and certainly Governor Newsom, are unwilling to do that. It might be that we need a new governor to get the law reversed, or favorable changes in federal policy might provide some impetus to change things in California.

They obviously have exempted a huge number of industries at this point. It mitigated the impact somewhat, but you’re right, there are still people who are unable to continue their profession, and companies that are unable to work with California’s independent contractors, and it continues to be a cautionary tale about what will happen if the new Department of Labor independent-contractor rule is enforced the way AB5 was enforced.

As you say, at the federal level, Democrats have been trying to replicate California’s Assembly Bill 5 for the whole country. It is now written into the Democratic Party platform that the plan is to keep pushing for the PRO Act, which countless experts have described as taking Assembly Bill 5 nationwide. Vice President Harris and Governor Tim Walz have both called for the PRO Act to be passed while they've been out on the campaign trail.

The Democrats claim that restricting self-employment in this way is necessary to stop companies from misclassifying employees, but on Sept. 23, Congresswoman Virginia Foxx, R-N.C., issued a subpoena to Acting Labor Secretary Julie Su, asking questions about how many instances of misclassification the U.S. Labor Department has actually found. Foxx also asked for an accounting of the occupations that were involved.

Is this subpoena an effort by Republicans to determine if the Democrats' claims of widespread misclassification are even real?

That could be part of it. I think we just want to get a sense of exactly what they’ve been up to. We know that their goals here are not benign.

We’ve seen what happened in California with AB5, and we now have the exact same person [Acting U.S. Labor Secretary Julie Su] responsible for this new national standard. We want to get a sense of what their plan of action is here and what folks can expect in various industries, and what countervailing actions we might take to protect them.

Acting Secretary Su was commanded to respond to that subpoena October 7. That was three days ago. Do you know if anything resulted from that subpoena?

I haven’t seen anything yet, but that’s the sort of thing where sometimes you have to go back and forth, and sometimes you potentially have to go to court to get them to comply. There are a lot of different ways the Biden administration has been uncooperative in these things.

What questions do you believe Acting Secretary Su needs to answer with regard to independent contractors specifically, and for the American people overall?

I think she needs to answer why she is attacking the livelihoods of millions of people.

She has plenty of tools already to deal with cases where someone is truly being treated in a way that doesn’t reflect the nature of the work they’re doing, and she can use those laws to go after the handful of unscrupulous employers who abuse the laws to shortchange their workers.

But Julie Su has used those relatively rare occurrences to justify a wholesale reshaping of the entire American economy, which is what this independent-contractor rule seems to do, by potentially impacting tens of millions of workers in terms of how they balance their work, and small businesses in the way that they work.

We could see potentially huge numbers of job losses. I think Julie Su needs to answer why that is justified when you have ways to deal with this.

Independent contractors like me are deeply grateful for the work that lawmakers like you have been doing to try and protect our livelihoods and chosen careers. After the election, do you expect Republicans to focus at least somewhat on this issue?

I’m asking because the ability to pay our bills is a top worry in just about every poll and survey that comes out. Shouldn't it be a priority to protect this freedom to be self-employed, especially given all the ways it's currently under attack?

Absolutely. I think a big part of what we need to do to get the economy back on track is have a significant regulatory-reform effort to empower small businesses and workers. I think that it’ll be a good opportunity to include protecting the right to earn a living as part of that effort.

I want to make sure that protecting the right to earn a living, having a clear standard for independent contractors based on the traditional understanding, is a big part of that.

On a personal note, I just want to say thank you again, Congressman Kiley, for everything that you have done to try and protect independent contractors like me. Tens of millions of us have our livelihoods in the crosshairs of this freelance-busting madness.

What can we all do, both inside and outside of California, to help you continue to fight for us?

Well, thank you for everything you’ve done. You’re an incredible leader of this whole movement.

I think getting the word out and highlighting this as a voting issue for independent contractors—making it clear where candidates stand on the issue—is important. People who value their independent-contractor status can at least be aware of what the stakes are when they go to vote.