Comment from Independent Women's Forum

The Independent Women’s Forum submits the following comment in support of the proposed rule, Independent Contractor Status under the Fair Labor Standards Act.

Today’s workplace is vastly different from generations ago. No longer is a 9-5 job necessarily the ideal path to a middle-class life. Being tethered to a desk does not guarantee productivity and, increasingly, work does not begin or end with the punching of the clock. The outdated employer-employee model of work has given way to an array of work arrangements that allow workers to maximize flexibility.

Women find independent contracting appealing because of the flexibility, autonomy, and freedom it provides. Many women seek out employment arrangements that allow them to balance competing priorities that demand flexible schedules such as caregiving for children or aging parents. Independent contracting offers avenues of employment that allow women to remain attached to the labor force and to advance in their careers while meeting personal obligations. Importantly, they retain control over their labor and time and they can negotiate the pay and schedules that meet their unique circumstances.

Flexibility is a driving force for women in the gig economy. According to a 2018 survey, flexibility is important to 94 percent of working women and 61 percent of these women prefer to have an independent relationship with their chosen companies versus working for that company as an employee.

Independent contract work is not just a choice for some women, it is a necessity. According to Freelancers in America 2019, a report by the Upwork and the Freelancers Union, 46 percent of freelancers say they depend on contract work because their personal circumstances prevent them from working in traditional jobs. This includes family obligations, but also health and other issues. In our work, we have come across survivors of crimes that needed to be able to work around medical appointments and treatments or away from others as they worked through severe trauma. In spite of these challenges and thanks to nontraditional work opportunities, they were still able to secure enough income to sustain themselves and their families.

While independent contractors do not receive benefits such as paid leave, healthcare, and unemployment insurance as employees do, they choose to trade those benefits for flexibility… Married women often have healthcare coverage through their spouse’s employer. Others purchase their own benefits and factor those costs into what they charge clients.

Labor policies have a tremendous impact on women and their preferences for independent contracting should not be discounted by policymakers. It is very concerning that lawmakers at the state and federal levels are advancing policies to severely restrict independent contracting.

When AB5 went into effect at the beginning of 2020, thousands of individuals across the state of California suffered as a result of this law. Workers lost contracts, reliable income, recurring work, and were forced to make heart-wrenching decisions about whether to outsource caregiver responsibilities to try to adapt to the requirements faced by full-time employees. One of those workers is Nancy, an independent contractor optometrist for 18 years who worked part-time to allow her time to raise her two children. After AB5 became law she said it cut her income by 30 percent overnight. Another devastated worker is Jennifer. Independent contract work comprised three-quarters of the income for this writer and yoga instructor, but that was slashed after AB5 became law as clients choose to contract with others in her field who lived out of state. These are real women we have interviewed and profiled at Independent Women’s Forum, as part of our Chasing Work campaign, an effort to study the real-world impact of harmful workplace regulations and policies like AB5. Sadly, Nancy and Jennifer’s experience is representative of many more women and men affected by the law.

As the movement to restrict independent contract work spreads to other states and may potentially
become the law of the land across America, workers need an advocate for flexible work. Through this proposed rule, the Department of Labor is supporting a diversity of work arrangements and pushing back against the imposition of a one-size-fits-all employer-employee model.

By establishing a reasonable and flexible standard for which workers should be classified as independent contractors under the Fair Labor Standards Act, the DOL is adding much-needed clarity that workers, firms, and judges can look to for guidance.

While we understand that this proposed rule will not supersede state laws or other federal statutes, it is an important signal that labor policy should embrace freedom and flexibility in the workplace.
We support this proposed rule and look forward to it being finalized expeditiously. (Attached is an unabbreviated comment.)

Comment ID: WHD-2020-0007-1380 | 23-Oct-20

Categorized under Family, Flexibility

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