Amendment 1 Proponents Double-Talk on Independent Contractors

Plus how recent (June 30) U.S. Supreme Court Ruling Presents a New Impediment to Proponents

This article continues addressing a ballot measure that Illinois voters must vote on this election cycle.
We urge voters to reject Amendment 1, a constitutional amendment that
would elevate collective bargaining rights in the Illinois Constitution,
allowing government union contracts to override state law.

Written by John Lopez

At the September 29 Amendment 1 virtual editorial endorsement interview hosted by the Daily Herald, two panelists from Shaw Media including Scott Holland participated.  Speaking and answering questions from the 3-person media panel for the proponents was Joe Bowen, communications director for the Vote Yes for Illinois Workers Rights amendment.  Speaking for opponents was Mailee Smith, Labor attorney for Illinois Policy Institute, through the Illinois Policy political organization.

Nearly 30 minutes into the interview, Shaw Media’s Scott Holland asked the question about independent contractors and Amendment 1, and the response from proponent Joe Bowen very revealing.

Here’s the transcribed exchange, with emphasis added:

Scott Holland:  “What impact are we looking at potentially on independent contractors, is that anything that has been delineated yet?”

Mailee Smith:  [Discussed the record of California’s Assembly Bill 5 (AB5), including the trailer bills/fixes passed since 2019 by the California Legislature, including Proposition 22 for the 2020 ballot to fix AB5, discussed in the previous article.  Smith pointed out the Illinois General Assembly, unlike the California Legislature, could not make fixes/changes to Amendment 1 if passed because it’s a constitutional amendment, which can only be corrected through another constitutional amendment]

Joe Bowen:  “Again, I don’t believe that that’s true.  John read the amendment at the beginning of this discussion and it very clearly says that it will prevent politicians from passing laws that interfere with your ability to organize and bargain collectively.  I think that that language is very clear.  Secondly, this amendment applies to empoyer-employee relationships specifically.  It does not have any underlying impacts for independent contractors at the moment, but, the Legislature would be able to revisit any laws that pertain to those folks at any time.”

During the opening statement, Bowen included this passage, with emphasis added.

Bowen:  “It’s a tremendous opportunity for every Illinois worker to vote for themselves on November 8, and it will enshrine protections that most of us already enjoy while extending protections to workers who don’t currently have it.

The cued video from the Amendment 1 editorial board interview is on YouTube and can be viewed here.

Throughout the six previous articles published through Illinois Family Action since late August, it’s been pointed out the words “employee” and “worker”, within the legal context of labor law, are not interchangeable, and when proponents begin treating “employee” and “worker” interchangeably, their message degenerates to one of double-talk, and voters must beware such approaches in their messaging, and VOTE NO on Amendment 1.

To recap from the previous six articles on Amendment 1 and as shared recently on Illinois Family Action, the forced unionization of 1099 independent contractors is the hidden agenda now openly public for the proponent of Amendment 1.

The editorial endorsement interview is the latest example, given impacts to independent contractors from the proponents is not a denial.

Indeed, the counsel for the proponents’ political committee, Marc Poulos, told the Chicago Tribune on September 25, the Amendment 1 could independent contractors, with emphasis added:

“It [Amendment 1] was intentionally drafted to apply to all workers, Poulos said, adding it will cover ‘droves’ of workers not yet protected by federal or state law, such as agricultural workers and independent contractors…”

But since the wording of Amendment 1 begins with the word “Employees”, and both Poulos and Bowen claim Amendment 1 targets workers not covered by federal or state law, the only way a worker can be protected under Amendment 1 would be for either the Illinois General Assembly, the United States Congress or the Biden Administration to implement Worker Classification, similar to California’s Assembly Bill 5 (AB5) law implemented at the beginning of 2020, using the ABC test for tax status classification.

As covered previously, the worker classification test applied to California’s AB5 law is the ABC test, and for reference, here is the three-prong ABC test a worker under AB5 must pass to be classified an independent contractor:

  1. The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
  2. The worker performs work that is outside the usual course of the hiring entity’s business; and
  3. The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

As previously discussed, federal law, the National Labor Relations Act (NLRA) regulates union organizing.  The other federal law cited in recent articles, the Fair Labor Standards Act (FLSA) of 1938, as amended, regulates employment including minimum wage, and employment within interstate commerce.

The Biden Administration, through the Department of Labor, is planning a rule change directly targeting independent contracting and Worker Classification.  According to Bloomberg Law, the White House Budget Office has signed-off on the recommended rule change for administration of the FLSA, the final step prior to making the rule change public and beginning the comment period before implementing the rule.

The potential rule change under FLSA could complement Amendment 1 because if the Biden Administration recommends a simple rule change, possibly using the ABC test for classification within the FLSA, then if Amendment 1 is approved by voters, the Illinois General Assembly will be off-the-hook needing to implement a Worker Classification law on its own.

Under an implemented rule change to FLSA for Worker Classification, Amendment 1 will absorb most workers including independent contractors utilizing the ABC test, depending when the more stringent employment classification is implemented, and they’ll be transformed into employees unless they can pass all three components of the ABC test for Worker Classification.

The U.S. House-passed Protecting the Right to Organize (PRO) Act which would amend the NLRA with the ABC test for Worker Classification in the context of union organizing stays stalled in the U.S. Senate due to three Democratic holdouts:

  • Mark Kelly (AZ)
  • Kyrsten Sinema (AZ)
  • Mark Warner (VA)

Virginia Foxx

Congressional Republicans Notify Labor Secretary the Recent Supreme Court Ruling in West Virginia v. Environmental Protection Agency Applies

On September 30, 2022, Congresswoman Virginia Foxx (R, NC-05), sent a formal letter to Labor Secretary Marty Walsh in her role as the Ranking Member of the House Education & Labor Committee, co-signed with ranking members from subcommittees, warning of the implication of the U.S. Supreme Court ruling in West Virginia v. Environmental Protection Agency (EPA).

Excerpts from the letter first explains West Virginia v. EPA:

“We write to bring to your attention West Virginia v. Environmental Protection Agency (EPA), a recent Supreme Court decision that clarified the limitations of certain agency actions.  Although Article I, Section 1 of the Constitution vests ‘all legislative powers’ in Congress, the Biden administration has largely relied on executive action to advance its radical agenda.  For example, in his first year in office, President Biden issued more executive orders and approved more major rules than any recent president.  Such reliance on the administrative state undermines our system of government.  Our founders provided Congress with legislative authority to ensure lawmaking is done by elected officials, not unaccountable bureaucrats.  Given this administration’s track record, we are compelled to underscore the implications of West Virginia v. EPA and to remind you of the limitations on your agency’s authority.

“In West Virginia v. EPA, the Court invoked the “major questions doctrine” to reject an attempt
by the EPA to exceed its statutory authority.”

After completing more legal explanations, Foxx, who’s in line to chair the Education & Labor Committee if Republicans flip the House as expected next month, specifically cited the FLSA change.

“From the very beginning of the Biden administration, the Department of Labor (DOL) has actively engaged in making regulatory changes—often skewing its policies in favor of union bosses and trial lawyers.  Throughout 2021, the Biden administration used COVID-19 as an excuse to expand government regulations.  DOL hastily and inappropriately attempted to withdraw the Trump administration’s sensible proposed rule classifying independent contractors and employees under the Fair Labor Standards Act (FLSA).

“Following the federal district court’s reinstatement of the Trump-era rule, DOL announced new rulemaking on independent contractors without using the usual process of publishing in the regulatory agenda or in the Federal Register, but via a post on the Wage and Hour Division’s blog.

“We are also aware DOL is writing needless regulations to revise overtime rules under the FLSA and to expand and distort the application of Davis-Bacon Act wage requirements to new federal construction projects.  Further, as Vice-Chair of the so-called ‘Task Force on Worker Organizing and Empowerment’ (Task Force), you have taken part in writing a plan to weaponize government power strictly in favor of  unions.”

The blog entry referenced is the June 3, 2022 announcement of the upcoming rule change and process for accepting input from interested parties.

Foxx’s letter can be viewed here.

The federal district court’s reinstatement of the Trump-era rule took place in March of 2022 and was covered here.

Given the Case Law precedent set with West Viriginia v. EPA, if the Biden Administration attempts to implement the ABC test with an FLSA rule change, without congressional approval, expect a very long and drawn-out court fight (2-3 years).

Should Amendment 1 pass, and litigation presents an impediment for proponents to carry out the stripping of worker freedoms by forcing independent contractors into W2 employment, then watch the Illinois General Assembly attempt to pass a California AB5 law, which has to-date survived legal challenges, including two the U.S. Supreme Court declined to hear.

Best way for workers in Illinois to protect their freedoms is to VOTE NO on Amendment 1.

Note from John Lopez:  The Illinois Economic Policy Institute tweeted a reply to me labeling my linkage of Amendment 1 to Worker Classification as “Misinformation”.  After support from friends and fellow freelancers, the ILEPI deleted their tweet, but enough people saw it, and moving forward, I will be screen capturing all hostile tweets on this topic.

John Lopez has written about policy and elections through the McHenry County Blog since 2019 through July 2021.  He is now semi-retired, and does freelance work with analytics, as well as political candidates, emphasizing policy as the means to advance the conservative message, by engaging through policy “dog fighting”, applying discernment for winning and advancing God’s Kingdom agenda.

John’s known for getting past the talking points, the narratives, the abstracts, the platitudes and the bromides in order to discuss policy and apply Scripture to overcome unholy divisions in the local community, our state, and nation.  John has been married for over 17 years.

Follow John on Twitter: @MarcVAvelar