Comment from James Alburger

The key word in Independent Contractor (IC) is Independent. Those of us who choose to work for ourselves or for our own, personal benefit choose that path because we value our independence. We value our right to choose who we work for, the right to determine the hours we work, the right to determine how we do the work (ie. Control), and the right to negotiate our compensation, among other things.

Those of us who are ICs make a choice to provide for ourselves. We do NOT want, nor desire, to work under the direct control of an employer or to be in a union. We also choose to be responsible for our personal welfare, actions and finances. Success or failure at our chosen endeavors is solely our responsibility.

Unrealistic factors for determining our IC/employee status (as created by Californias AB5) serve to violate and remove our personal rights, and have a devastating affect on creativity, entrepreneurship and personal freedoms. AB5 put thousands of independent contractors out of work by codifying a 3-step process that, by its very design, made it extremely difficult to qualify as an IC. AB5 was written by a person who is pro union and anti-entrepreneur. Clearly AB5 and similar regulations being proposed in other states, are little more than efforts to mandate unionization and control over creative individuals.

House Bill HR2475 effectively takes AB5 to a national level, and if passed would effectively kill creativity, entrepreneurship and personal freedom to work as we choose. Fortunately, this bill is stalled in the Senate.

The proposed FLAS changes for clarifying Independent Contractor vs. employee status will help resolve (and hopefully remove) the disastrous effects of AB5 and the potential disaster that could be HR-2475.

The Proposal To Adopt the Economic Reality Test To Determine a Worker’s Employee or Independent Contractor Status Under the Act as described in section C makes some excellent points, and the last paragraph (of C) sums it up nicely.

The phrase excludes individuals who, as a matter of economic reality, are in business for themselves. Such individuals work for themselves rather than at the sufferance or permission of a potential employer, see 29 U.S.C. 203(g), and thus are not dependent on that potential employer for work.

In Section (D), a definition or further clarification of investment may be needed. If this is referring to the ICs provision (investment) of the skill, equipment or tools necessary to do the job, that is one thing that should clearly define the person as an IC. However, what, exactly, constitutes an opportunity to earn profits or incur losses based on his or her exercise of initiative or management of investments.? As written, I find the statement vague and unclear.

I provide services that are directly related to a production process. One of the conditions of AB5 is that the individual being hired must provide services that are outside the primary business of the hiring entity. In my area of film/video/audio production, this requirement to provide services that are different from the hiring entity is not only impractical, but is, in many cases, impossible. ICs in this line of work are, by definition creative individuals who, in many cases, have no desire to be an employee. And when it comes to Independent Filmmakers, many of these productions are on a low-to-no budget and the producers neither have the desire nor the funds to hire crew and actors as employers.

This statement sums it up nicely: (1) Does the worker exercise substantial control over the key aspects of the work; and (2) does the worker have an opportunity for profit or a risk of loss based on initiative or investment? If the answer to both is yes, the worker is most likely an independent contractor.

The operative words here are key aspects. As a voice actor, the key aspect is the ability to perform and communicate a message effectively. As an audio producer or recordist, it is the ability to get a great recording. As a video editor, it is the ability to sequence images and sound in a motivating and compelling manner.

I support the proposed FLAS changes and I encourage additional simplification of the process. Up to January 1st in California, the standard for IC/employee classification was the 12-question Borello test, which seems to have worked pretty well for many years. AB5s 3-question ABC test completely destroyed the gig economy in California, making it next-to-impossible to qualify as an IC.

I believe the proposed changes are a good first step. However, I also believe that there needs to be an extremely clear, concise and easy-to-understand nationally standardized test that removes any confusion and vagueness while retaining and supporting our rights as U.S. citizens to choose how we wish to make a living. The imposition of untenable restrictions, qualifications, or confusing rhetoric is not acceptable.

Comment ID: WHD-2020-0007-0061 | 7-Oct-20

Categorized under Independence

Read the whole comment on Regulations.gov