Comment from New Jobs for Massachusetts, Inc.

I have reviewed the DOL proposed regulation several times as a former employee, former employer, and occasional buyer of freelance services for short-term projects.

The Department’s proposal is exceptionally well researched, even handed, well written, and clear. The solution is comprehensive and ideal for the problems individuals who freelance face right now. The proposal can be readily explained by employer- and employee-side counsel. It can be read, understood and acted on by their clients.

The proposed regulatory change is so well suited to its task that I endorse it as is, intend to support it publicly, and suggest no changes as far as it goes.

–What’s Missing from the DOL Proposal

If the proposal is adopted, three problems will remain that are outside the scope of the DOL proposal. I believe they need to be addressed in the change.

First, there will still be no way for a voluntarily self-employed individual to acquire self-employed status for certain.

Second, there will still be no way to communicate voluntarily self-employed status. There will be no token that a self-employed individual can show a buyer that he or she is voluntarily self-employed and thus offer the buyer of services a safe harbor from the risk of fines, penalties and other regulatory enforcement actions.

Third, employment laws vary widely among the states and between the states and the federal government, and they tend to change frequently. Buyers have heard harsh news about draconian penalties on buyers in Massachusetts and California. Nationwide, many buyers have pulled back, fearing regulatory and judicial retaliation and enforcement. In Massachusetts, buyer pull-back began in 2004.

Ironically, the FLSA permits many distant third parties to classify workers as employees or independent contractors. State and federal regulators, state and federal legislators, judges, union activists, plaintiffs’ attorneys, defense attorneys, and in some states possibly even juries all have a hand in classifying which individuals are freelancers and which are legitimately self-employed.

Missing is the voice of each individual wishing to work and identify as self-employed.

Why not allow an individual to make a determination of what is best for her? She is fully involved in an intensely personal and vital economic decision for herself, her family and her economic livelihood.

Choosing to be self-employed is a choice between working under contract law or self-employment law. Individuals can choose to be married or single and live with different laws. Why not allow people to choose self-employment?

Interestingly, nearly all positions with authority for employee classification are filled by individuals who are currently employees, and may have been so throughout their lives. Freelancers and the self-employed, in contrast, are seeking to be employers of themselves and perhaps, in time, other individuals. FLSA does not permit this choice of law, so state law cannot permit it, either. Thus, there can be no federalist-style experimentation with voluntary declarations among the states under current law.

Comment ID: WHD-2020-0007-0021 | 2-Oct-20

Categorized under Independence

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