These Punches Landed
I called out freelance busting in my testimony this week before a Minnesota task force. The SEIU representative described such concerns as "bullshit."
I knew that I had landed some punches against the freelance-busting brigade when I received this email from a leading voice in the Minnesota business community:
“Loved your testimony. And the Minnesota Nice people I work with are like OMG NEW JERSEY IN THE HOUSE hahahaha”
Those words flashed across my screen a few minutes after I testified via video before Minnesota Attorney General Keith Ellison’s Advisory Task Force on Worker Misclassification.
My testimony wasn’t long. Only two minutes.
But it was different from testimony I’ve given at the state and federal levels in years past. This time, I applied the lessons I learned by reading the new book Liberal Bullies by Luke Conway.
Recently, I interviewed Conway for this column after seeing an excerpt from his book online. Then, after reading his book in full, I realized that I could follow his advice to better tailor my testimony.
I needed to speak in a way that would get through to liberals who truly believe they are the good guys fighting to stop employee misclassification when they are in fact recommending policies that threaten to destroy legitimate independent contractors’ livelihoods.
Conway’s book offers six tips for how to fight smarter against this type of a person. I used the Minnesota task force opportunity to give those tips a try.
His advice was right. These punches landed—so hard that the task force member from the freelance-busting SEIU protested that “the term freelance contractors is bullshit. Freelance busters is bullshit.”
Here’s what I said, and how I said it, to make the truth land in such an impactful way.
My Testimony
My name is Kim Kavin. I’ve been a freelance writer and editor for more than 20 years. I got involved with the independent-contractor issue in 2019, when my home state of New Jersey tried to hurt people like me with a strict ABC Test the same way California had just hurt independent contractors out there. It was the exact same kind of hurt that your task force is now discussing in Minnesota.
In recent years, everywhere lawmakers have tried to impose this kind of ABC Test, independent contractors have risen up and fought back. Women. Men. White. Black. Brown. Liberal. Conservative. Young. Old. All of us have stood together and insisted that the government protect us from you.
The very nature of your task force gives away the fact that you’re playing this same tired game. Think about it: If you created a task force to stop racism, would you have only white people on it, with just one person of color? What if you wanted to stop sexism? Would you give just one woman a seat? Of course not. The task force would be seen as illegitimate.
Now, look at the members of your task force. You allowed only a single independent contractor to be on a task force about independent contractors.
What you have is a task force that’s heavy on unionists. I understand why you want to help unions: Membership is at an all-time low, and Gallup says 80% of people either don’t want to join a union, or are at best neutral on the subject.
But when you try to solve that union problem by destroying the livelihoods of independent contractors, all you do is come off as extremists.
And in the end, it doesn’t even work. In California, there was so much public outcry that lawmakers enacted an emergency measure, trying to undo the damage. Voters who used to host fund-raisers for Democrats fought against those very same Democrats. The bill’s primary sponsor ended up leaving the Legislature under a cloud of widespread hatred.
Here in New Jersey, independent contractors blanketed the media. We bombarded lawmakers with calls and emails. The Democrat who sponsored that ABC Test bill ended up out of work. He was the highest-ranking graduate of the AFL-CIO Labor Candidates School, and voters replaced him with a furniture-store truck driver. That’s how angry people were.
All of you who plan to recommend this ABC Test in Minnesota need to understand that freelance busting has a cost. You will be seen as bullies attacking independent contractors.
For these reasons, I strongly urge you to make more reasonable recommendations. Minnesota should be a state that values people’s freedom, not that tries to take it away.
Thank you for this opportunity. I’m happy to take any questions you have.
A Few Minutes Later…
You can hear my tone—the exact way I read those words off my screen—if you start watching the following recording from the meeting at about minute 53:20.
Or, skip ahead to about hour 2:06, where you can hear remarks from Brian Elliott, executive director of the SEIU State Council in Minnesota.
Here’s what Elliott said:
“Despite what an earlier testifier said, this isn’t about, this isn’t a committee about independent contracting. This is a committee about misclassification of workers who are not legitimate independent contractors.
“And the other piece that we need to understand is the very real power dynamic. So, my first point being: Workers have a role in enforcing the laws that affect them. The second piece is the power dynamic … between workers and employers … There is a very real power dynamic, which is why, by the way, the term union busters fits and the term freelance contractors is bullshit. Freelance busters is bullshit. ...”
"People who are legitimate independent contractors want to be independent contractors. And that is good. I have been an independent contractor. I am currently an employee. And I have hired both workers and independent contractors to do work. There is a role for both. And I am not out to get independent contractors. That’s not what this is about.
"This is about our members. This is about workers in general who are being forced into independent contracting because there’s a power dynamic and an … imbalance in the understanding of how the law is applied between contractors and others who are legitimately and are actually independent contractors and folks who are telling, employers who are telling people they are independent contractors despite the fact that they are not, so they can get around the law.”
Mark the date and time, folks.
This is the day the SEIU said out loud that a task force discussing who is a legitimate independent contractor isn’t about independent contracting—and the day we were told that union-busting concerns are real, but freelance-busting concerns are not.
He Doth Protest Too Much
When people start yelling that information they don’t like is “bullshit,” it’s a tell. It’s akin to calling an opponent’s words “misinformation” or “fake news.” It’s a way of admitting that you can’t win the debate on the facts, so you don’t want the debate to happen at all.
This tendency is actually in Conway’s book. He describes how people who come from an authoritarian mindset actually prefer intellectual apathy. They don’t want the hard conversations to be had, because those conversations can expose them as being bullies, if people really stop and think about what’s going on.
Conway writes:
“Authoritarians actively seek to silence those different from them. They want authority figures to punish dissenters. They don’t like open debate. …
“[A]uthoritarianism causes the people in the majority to feel emboldened to ignore debate. Why should you bother listening to your opponents’ arguments when you can simply ignore them, knowing that they will be punished by an authority figure sooner or later?”
Think about it: If Elliott had been open to a real discussion about this policy issue, then why did he talk about my testimony only after all of us witnesses were gone? I had very plainly said that I was happy to take questions. He waited until I left the meeting to try and tear my words down.
And then, ask yourself this: If Elliott had been the sole union representative on a task force composed primarily of legitimate independent contractors, do you think he would have said what he said, in the way that he said it?
Or, did he feel emboldened to tell everyone in the room to ignore what were, in fact, well-documented details from several other states? Ones that have already gone down the same horrible path that this Minnesota task force is discussing now.
Elliott is also a person with ties to government power. Prior to sitting on Attorney General Ellison’s task force, he was district director for then-U.S. Representative Ellison, who himself faced backlash back in 2017 from the Democratic Party establishment for views that were considered beyond the mainstream.
Today, what may then have been considered an extreme view on independent-contractor policy is now a promise written into the Democratic Party platform. The party establishment now says it will fight to pass the Protecting the Right to Organize Act, which would take the California-style ABC Test nationwide.
Think about that level of power, and then think again about what Conway wrote:
“Why should you bother listening to your opponents’ arguments when you can simply ignore them, knowing that they will be punished by an authority figure sooner or later?”
It’s far easier, of course, to just yell “bullshit” and carry on with the freelance busting.
What’s really sad about this failure to acknowledge what legitimate independent contractors keep saying is that we are actually in agreement on Elliott’s main point.
In his words, what’s happening right now is that there is an:
"… imbalance in the understanding of how the law is applied between contractors and others who are legitimately and are actually independent contractors and folks who are telling, employers who are telling people they are independent contractors despite the fact that they are not, so they can get around the law.”
I have never heard anyone dispute that fact, in the five years that I’ve been fighting this freelance-busting insanity.
Everybody agrees that misclassification is real. Everybody agrees that misclassification is wrong. But it’s only happening to a minority of independent contractors. If there was an effort to enhance education around this issue, so people who are truly being exploited could better understand their rights, then a lot of the problem would be solved under existing laws and regulations.
And honestly, if trying to enhance education about this issue was the only goal of this task force in Minnesota—or any of the similarly structured “misclassification task forces” we’ve seen in other states—then nobody would have a problem with what’s going on.
But solving an education problem is not the only thing that these unionist-heavy task forces are talking about.
They’re also talking about changing the very definition of who a legitimate independent contractor is—and they keep talking about doing it in ways that try to force as many legitimate independent contractors as possible out of work altogether, or into unionizable employee status.
Why These Words Worked
Based on the feedback I received after my testimony, it seems that three of the things I did to follow Conway’s tips were most effective.
Pressure only as much as you have to; persuade as much as you can
I wasn’t yelling or cursing or being rude when I gave my testimony. My “New Jersey attitude” was simply being direct. I stated facts in a clear and persuasive way, and in a way that I thought would get the attention of my liberal-progressive audience:
“If you created a task force to stop racism, would you have only white people on it, with just one person of color? What if you wanted to stop sexism? Would you give just one woman a seat? Of course not. The task force would be seen as illegitimate.
“Now, look at the members of your task force. You allowed only a single independent contractor to be on a task force about independent contractors. What you have is a task force that’s heavy on unionists."
What I said is accurate. It’s persuasive because it’s the truth, spoken in a way that was undeniable to the people listening.
Push the cost-benefit ratio early and often
Conway writes about how it’s important to demonstrate the cost that comes with bad behavior. That means I had to find a way to discuss not the cost of freelance busting to us as independent contractors, or the cost to the broader economy of destroying our livelihoods, but instead the cost to the freelance busters themselves.
I did this by explaining the grassroots resistance that freelance busting had stirred up in California and New Jersey, and by adding that the people who sponsored the laws are now out of office and widely reviled. I said:
“All of you who plan to recommend this ABC Test in Minnesota need to understand that freelance busting has a cost. You will be seen as bullies attacking independent contractors."
Those are costs to the reputations and power of the freelance busters.
Again, it’s just truth spoken plainly, based on five years now of seeing this same type of thing play out in other states. It’s framed in a way that the people doing the freelance busting realize they will have a price to pay for hurting legitimate independent contractors.
Actively seek common ground
I ended my testimony with this, in an attempt to seek common ground:
"Minnesota should be a state that values people’s freedom, not that tries to take it away.”
That’s a statement with which most people would agree. If there were any reasonably minded people on that task force, they would hear those words and at least pause to think about what they were considering.
They also would have language at their fingertips to be able to push back against more extreme task force members who may still insist on recommending a California-style ABC Test in Minnesota.
Everyone should be on the side of freedom, including the freedom to choose how we earn a living. If we need more education about real cases of misclassification, then we should all be for that, too. There is plenty of common ground to be had here.
But until then, the louder they call “bullshit” on the real concerns of legitimately self-employed people who don’t want our livelihoods threatened, the more I’m going to call out the fact that they’re acting like a bunch of freelance-busting bullies.
It’s the truth, plain and simple, whether they’re comfortable with it or not.