The complaint challenges the independent contractor final rule that the Department published January 9, and that is set to take effect March 11, 2024. The lawsuit asks the court to find the Department’s rulemaking invalid.

Plaintiffs are freelance writers and editors Karon Warren of Georgia, and Kim Kavin, Deborah Abrams Kaplan and Jen Singer, all of New Jersey. The latter three created Fight For Freelancers NJ in 2019 after a New Jersey bill was introduced, copying California’s freelance-busting Assembly Bill 5 (AB5). In 2020, Kavin, Kaplan and Singer joined with Warren to expand the group nationwide, as Fight For Freelancers USA, after the federal Protecting the Right to Organize (PRO) Act was introduced with similar career-killing language. Fight For Freelancers advocacy helped stop the New Jersey bill and the PRO Act from becoming law.

In 2022, the U.S. Department of Labor praised California’s disastrous approach when it proposed the new independent contractor rule. This month — with years of evidence that proves independent contractors need protection against such policy-making — the Department outright conceded “there may be conceptual overlap” between AB5, the PRO Act and this rule.

“The only thing the U.S. Department of Labor clarifies with this rule is a continued pattern of freelance busting against tens of millions of Americans whose clear preference is to remain self-employed,” says Kavin, who testified before Congress last year, urging lawmakers to protect independent contractors. “This rule is so vague that it will give the Department carte blanche to misclassify almost any independent contractor it chooses to target, destroying hard-working, entrepreneurial people’s incomes and careers all across the country.”

During the rulemaking’s public comment period, Fight For Freelancers USA filed an annotated, 20-page explanation of problems with the proposed rule. Leaders and members of the group attended hours-long public hearings, which were dominated by independent contractors explaining how the rule would threaten their businesses, including the factor that if the work is critical, necessary or central to a client’s business, then the independent contractor should be classified as her client’s employee. Fight For Freelancers USA leaders also attended an information-gathering session with the U.S. Small Business Administration Office of Advocacy, and met with the Office of Information and Regulatory Affairs, repeating similar concerns.

“This factor can be used to paint a bull’s-eye on freelance writing and many other legal independent contractor arrangements,” Singer says. “Some of us who have a few dozen clients would have to become employees of all these companies — likely lower-paid, part-time employees with no benefits — if we’re hired at all. This freelance busting is not practical or useful.”

“With this rule, the U.S. Department of Labor rejected virtually all of the concerns that independent contractors from countless professions raised during the public comment period,” Kaplan says. “Sadly, our experience has been that the people who want to end our chosen careers by misclassifying us as employees simply have no interest in trying to understand how these freelance-busting regulations would harm us.”

Fight For Freelancers USA is also dismayed by the widespread media narrative that the Department’s attempt to misclassify legitimate independent contractors is a way to protect them. Most independent contractors are more satisfied with their working relationships than Americans in the types of traditional employer-employee roles that the Department champions.

“The most recent research says there are more than 70 million independent contractors who comprise a significant portion of the U.S. workforce,” Warren says. “Study after study shows that 70% to 85% of us wish to remain self-employed. Independent contractors contributed $1.27 trillion to the economy in 2023 alone. We will continue to advocate however we can for these independent contractors, who, like us, simply want to keep their chosen careers.”

The lawsuit was filed in the U.S. District Court for the Northern District of Georgia, Gainesville Division. Pacific Legal Foundation’s representation is pro bono.

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