Is this the End of the Entrepreneur?
by Rosemary Becchi
People in New Jersey work hard, most with the dream of building a better life for their families.
Those with enough determination and grit supplement day jobs by working as independent contractors, putting their special skills to use after hours and on weekends. Others do it full-time because they like the flexibility of working for themselves, and others do it because they can’t leave their homes for traditional jobs.
Many just hope to build their own company one day. It’s a classic tale of the American Dream, one being pursued by more than 10 million people, according to the federal Bureau of Labor Statistics.
So why on earth are the people representing us in Trenton and Washington D.C. trying to destroy that?
Our state Legislature has recklessly fast-tracked a law that could effectively kill any chance of people working in New Jersey as an independent contractor. Similar efforts are afoot in the U.S. Senate and in Congress, and California industries are already in turmoil over a similar law slated to go into effect in January.
We are looking at the very real possibility of killing the business of every real estate broker, designer, hairdresser, freelance writer, photographer, and truck driver who chooses to work as an independent contractor. Imperiled as well are many unseen professionals, from on-line teachers to aids for the special needs community.
Ironically, the law in New Jersey is largely being pushed by legislators who also support Governor Murphy’s plan to build what he calls an “innovation economy” — a plan he says will be realized by encouraging more entrepreneurs.
So why is this happening? Why now?
Paternalistic advocates in D.C. and New Jersey claim they want to protect the workers — although fewer than one in 10 independent contractors nationwide report that they prefer a traditional job over their entrepreneur effort.
What stirred the pot was car-ride companies like Lyft and Uber. New Jersey, like other states, fined Uber $649 million recently, accusing the car service of violating state labor regulations by treating its drivers as independent contractors when, the state claims, they should be treated as company employees.
“Misclassifying” workers, as it is known, is traditionally a problem in the construction industry. Some unscrupulous builders try to avoid paying FICA, unemployment insurance and other taxes on their workers by classifying them as independent contractors instead of company employees. The companies also try to avoid paying traditional benefits to the employees.
It’s wrong when it happens, and labor officials on the state and national level have always prosecuted errant companies. In fact, New Jersey’s Department of Labor and Workforce Development regularly publicizes the cases it prosecutes.
But anti-Capitalism activists and the reckless career politicians vying for their support have used the clamor over Uber and Lyft to create a false sense of urgency. They are now doing what they always do — creating panic and conjuring a nuclear-weapon solution to obliterate the perceived problem, along with everything else around it.
Any sense of responsibility to the American public is being blown away, along with all appreciation for independent contractors and the advances enjoyed by everyone in America because some entrepreneurs walked away from traditional employment.
These workers want to continue America’s traditional independent contractor model: to hone their valued skill, knowledge or talent; freely sell their services; set their own schedules; invest in themselves, and take ownership of their work in a way that is often impossible in a traditional working arrangement.
Stunned by this surprise attack on their livelihoods, independent contractors are now reaching out to legislators. But they are discovering we are leaderless in both Trenton and Washington.
The career politicians are fixated on moving sweeping laws instead of rethinking the effort. In New Jersey, we have mild appeasement. Politicians say they are crafting a list of independent contractor classifications to exempt from the new law.
But it seems insincere given these same politicians lacked the vision in the first place to realize the adverse impact their ham-fisted efforts will have on entrepreneurs. It is stunning they did not sit down with the business community before launching this folly.
We need to stop this job-killing juggernaut. We need real leadership on this issue, and all other issues in both Trenton and Washington. We need thoughtful people who will take reasoned approaches to solve problems, without creating new problems.
New Jersey, and the rest of America, deserves better than this.
Rosemary Becchi is Strategic Advisor and Counsel at Brownstein Hyatt Farber Schreck and Founder and President of Jersey First, an advocacy organization dedicated to advocating for lower taxes and less spending in New Jersey.
Beginning December 17, 2019, at 12:01 a.m., motor carriers and drivers subject to the ELD rule must use self-certified ELDs that are registered with FMCSA to record their hours-of-service data. If a driver or motor carrier fails to use an ELD when one is required, the driver and motor carrier will be in in violation of the ELD rule and will be cited in accordance with 49 CFR 395.8(a)(1); and the driver will be placed out-of-service in accordance with the Commercial Vehicle Safety Alliance OOS criteria.
Don't forget to:
The ELD exceptions delineated in the ELD rule and the ELD exemptions announced by FMCSA will not be impacted by the December 16 deadline. Motor carriers and drivers who operate under these exceptions and exemptions will continue to be able to use alternate methods of record-keeping after ELD full compliance goes into effect.
To learn more about the phases of ELD Implementation, view the ELD Implementation Timeline
The ELD website now offers an easier way to view the frequently asked questions on the ELD rule and technical specifications. Browse by categories or search by key terms to find the information you need.
Don’t Destroy Independent Trucking Jobs in New Jersey
By Gary Cooper
For 52 years, I’ve been proud to call New Jersey home. I’ve been blessed with the opportunity to run my own business here – a small trucking company that I’ve run since 2009.
As an independent trucker, I earn around $125,000 per year—or more than double the $54,585 that company drivers make annually on average—while operating in the ports and across the Garden State hauling goods that Americans buy and enjoy every day.
But now all this is in jeopardy. Everything I’ve worked for – and the way I make my living here in New Jersey – is threatened by a bill in the state legislature introduced by Senate President Steve Sweeney (S.4204) and Assemblymen Joe Egan and Wayne DeAngelo (A.5936).
S.4204 and A.5936 would change the way independent contractors are defined by the law. These bills would in effect outlaw the use of independent contractors in the trucking business. Whether it’s their intention or not, S.4204 and A.5936 would make it illegal for me and thousands of others independent truckers to earn our living in the state of New Jersey. The bills would force me to close my business and move elsewhere.
Regular folks might not realize that independent contracting is essential to making the trucking industry work. The holiday season is a perfect example why, as holiday shopping creates a surge in freight volumes and demand for trucks. By using independent contractors like myself, large trucking companies – the kinds that enter into contracts with big box stores – are able to expand their capacity to meet the increase in seasonal demand, rather than hiring new full-time drivers that are only needed for a month’s time.
This model is what I call a win-win-win. It benefits consumers by ensuring store shelves are stocked purchases arrive on time. It benefits large fleets by giving them the resources to serve their customers during peak freight seasons. And it allows independent truckers like myself to run our own companies on our own terms.
I can appreciate that S.4204 and A.5936 are intended to protect independent contractors in other industries who may be abused, but their one-size-fits-all approach does not account for how the trucking industry works. Rather than helping us, the bills are going to destroy our living as independent truckers.
I love being an independent contractor in trucking. I enjoy the freedom of being my own boss. It gives me schedule flexibility. I can decide how much I make, instead of being paid a fixed amount as a company driver for a big fleet. I can control my income more or less according to my needs and abilities. With drive and determination, I can go as far as I want and expand my business at my own will. If it’s a rainy day, I can decide to work or not work in inclement weather. It gives me the freedom to live a prosperous and happy life.
I’m not alone. There are thousands of my fellow trucking brothers and sisters who are facing the same dire consequences of this legislation. I understand that some 77% of drivers who work at the Port of New York and New Jersey are independent contractors. Should this bill pass into law, it’s going to create a catastrophic logjam at the port and a severely disrupt the flow of commerce through our state.
I can’t believe that after 52 years of living in New Jersey, I am now faced with the possibility of being forced to leave. I love trucking, and I love the freedom and empowerment that comes with being an independent trucker. I implore Senator Sweeney and Assemblymen Egan and DeAngelo to revise S.4204 and A.5936, and to consider the harm those bills are going to inflict on so many hard-working New Jerseyans
With millions of people logging in to websites and online accounts this holiday season, the IRS and the Security Summit partners remind taxpayers that common mistakes can increase their of risk having sensitive financial and tax data stolen by identity thieves.
The Internal Revenue Service, state tax agencies and the nation’s tax industry remind taxpayers that using strong passwords and keeping them secure are critical steps to preventing thieves from stealing identities, money or using the information to file a fraudulent tax return.
“Taking a few simple steps to protect your passwords can help protect your money and your sensitive financial information from identity thieves, which is critically important as tax season approaches” said IRS Commissioner Chuck Rettig. “Protecting your information makes it harder for an identity thief to file a fraudulent tax return in your name.”
Password protection is the focus of Day 3 of National Tax Security Awareness Week. For the fourth year in a row, the IRS, state tax agencies and the nation’s tax industry – working together as the Security Summit – are highlighting the holiday period as a time to remember important safety tips everyone should take to protect their sensitive tax and financial data.
The week continues through Dec. 6 with a series of special educational efforts taking place at more than 25 partner events across the country to raise awareness about protecting taxpayers and tax professionals from identity theft. The week includes special social media efforts on platforms including Twitter and Instagram, including a special Twitter chat on @IRSnews and #TaxSecurity on Thursday.
Strong passwords protect online accounts and digital devices from data theft. But there have been some important changes many people can overlook.
In recent years, cybersecurity experts’ recommendations on what constitutes a strong password has changed. They now suggest that people use word phrases that are easy to remember rather than random letters, characters and numbers that cannot be easily recalled.
For example, experts previously suggested something like “PXro#)30,” but now suggest a longer phrase like “SomethingYouCanRemember@30.” By using a phrase, users don’t have to write down their password and expose it to additional risk. Also, people may be more willing to use strong, longer passwords if it’s a phrase rather than random characters that are harder to remember.
Protecting access to digital devices is so critical that some now feature fingerprint or facial recognition technology, but passwords remain common for many people.
Given the sensitivity of many of these online accounts, people should consider these passwords tips to protect devices or online accounts:
Whenever it is an option for a password-protected account, users also should opt for a multi-factor authentication process. Many email providers, financial institutions and social media sites now offer customers two-factor authentication protections.
Two-factor authentication helps by adding an extra layer of protection. Often two-factor authentication means the returning user must enter their credentials (username and password) plus another step, such as entering a security code sent via text to a mobile phone. Another example is confirming “yes” to a text to the phone that users are accessing the account on.
The idea behind multi-factor authentication is that a thief may be able to steal usernames and passwords, but it’s highly unlikely they also would have access to the mobile phone to receive a security code or confirmation to actually complete the log-in process.
Remember: the IRS will never ask for passwords. And watch out for phishing emails posing as trusted companies seeking passwords.
The IRS, state tax agencies, the private sector tax industry, including tax professionals, work in partnership as the Security Summit to help protect taxpayers from identity theft and refund fraud. This is the third in a week-long series of tips to raise awareness about identity theft. See IRS.gov/SecuritySummit for details.
Greenbelt, Maryland (Dec. 2, 2019) – Starting Dec. 17, 2019, all motor carriers and drivers subject to the U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) electronic logging devices (ELD) final rule must use an ELD. This deadline also pertains to grandfathered automatic onboard recording devices (AOBRDs), which will no longer be allowed under the Federal Motor Carrier Safety Regulations to provide records of duty status as a substitute to a required ELD. Motor carriers utilizing an AOBRD must have a fully operational ELD installed by Dec. 17, 2019.
According to FMCSA, there will be no extensions or exceptions made to the Dec. 17, 2019, ELD rule deadline. In addition, the Commercial Vehicle Safety Alliance (CVSA) stated that inspectors will begin fully enforcing the ELD rule on Dec. 17, 2019; there will be no "soft enforcement" grace period.
If a commercial motor vehicle driver is required to have an ELD and the vehicle is not equipped with a registered compliant ELD, the driver is considered to have no record of duty status; that also applies to a driver still using an automatic onboard recording device after the AOBRD to ELD transition deadline of Dec. 17, 2019. According to the North American Standard Out-of-Service Criteria, a property-carrying driver who does not have a record of duty status in his or her possession when one is required will be declared out of service for 10 hours and a passenger-carrying driver without a record of duty status when one is required will be placed out of service for eight hours.
CVSA-certified roadside inspectors use the North American Standard Out-of-Service Criteria to identify conditions that preclude further operation of a commercial motor vehicle by its driver for a specified amount of time, or for some conditions, until the violation is corrected. The April 1, 2019, North American Standard Out-of-Service Criteria specifies the out-of-service conditions related to deficiencies of record of duty status and hours-of-service rules and regulations. In addition, CVSA's Inspection Bulletin regarding hand-held and electronic logging devices outlines the requirements for devices used to record drivers' hours of service, according to 49 CFR Part 395 Subpart B – Electronic Logging Devices.
FMCSA implemented the ELD rule to make it easier and faster to accurately track, manage and share record of duty status information, and to help improve road safety and reduce the number of crashes. An ELD automatically records a driver's driving time and other hours-of-service data. Hours-of-service rules and regulations were developed to minimize driver fatigue and improve safety for everyone on the road. In addition, ELDs monitor a vehicle's engine data, such as when the engine is running, whether the vehicle is moving, miles driven, duration of engine operation, etc.
It's important to note that the ELD final rule does not change any of the underlying hours-of-service regulations. For more information regarding ELDs, the ELD final rule, hours-of-service, etc., visit FMCSA's website.
** UPDATE : AS OF 1:45 P.M. Monday, December 02, 2019 **
In NJ: Tractor trailers are restricted in BOTH DIRECTIONS from using:
Pennsylvania has made a couple of tweaks – lifting their ban on US 22 and reducing the length of the restriction on I-78
In PA: Empty and Double Wides are banned
NY State and CT presently do not have travel restrictions in place.
New Jersey Department of Transportation (NJDOT) Commissioner Diane Gutierrez- Scaccetti today issued a commercial vehicle travel restriction on portions of I-78, I-80, and I-287 starting at 12 midnight tonight.
The winter storm is expected to produce difficult travel conditions across the northwest portion of the State due to accumulated snow and ice that will cause limited visibility on the roadways and disrupt snowplow operations, especially during the morning and evening commuting period on Monday, December 2.
NJDOT is prepared and coordinating our response with our regional transportation partners and the New Jersey State Police to ensure the safety of all travelers. Ice and winds could bring trees and branches down on roadways. NJDOT crews have tree-clearing equipment available to remove debris from state highways to ensure plows, emergency personnel and utility companies can get through.
Commercial Vehicle Travel Restriction
The restriction applies to the following Interstate Highways in New Jersey including:
I-80, both directions from the Pennsylvania state line to exit 43 (I-287)
I-78, both directions from the Pennsylvania state line to exit 29 (I-287)
I-287, both directions from exit 21 (I-78) to the New York border
The commercial vehicle travel restriction in New Jersey applies to the following vehicles:
Empty straight CDL-weighted trucks
Passenger vehicles pulling trailers
The restriction DOES NOT apply to:
New Jersey Turnpike
Garden State Parkway
Atlantic City Expressway
The Department is reminding motorists:
AVOID UNNECESSARY TRAVEL during the storm
Consider Telecommuting tomorrow, if possible
If you must drive and road conditions deteriorate, GET OFF THE ROAD somewhere safe and
wait it out
Always STAY CLEAR of plows and spreading trucks. If they are behind you, let them pass
DO NOT PASS between trucks that are in a plow formation
Be patient and use caution
In order for NJDOT and our regional and local transportation partners to safely and efficiently clear roadways of snow and ice, motorists need to Clear the Roads so We Can Clear the Roads.
NJDOT will deploy our Incline Package assets on I-280 and I-78 at Jugtown mountain (between Exits 7 and 11), which includes pre-positioning towing assets, NJDOT Safety Service Patrol (SSP) trucks, and coordination with New Jersey State Police.
NJDOT will be using Variable Message Signs throughout the storm to provide updates. Once conditions improve, NJDOT will lift the Winter Weather Alert.
Motorists are encouraged to check NJDOT's traffic information website www.511nj.org for real-time travel information and for NJDOT news and updates follow us on the NJDOT Facebook page or on Twitter @NJDOT_info.
New Jersey Gov. Phil Murphy and state Senate President Stephen Sweeney are about the destroy the lives of hundreds of thousands New Jerseyans, and this is not hyperbole.
Click here For the Article: https://www.trentonian.com/news/the-lives-of-hundreds-of-thousands-of-new-jerseyans-are/article_91e95642-0c08-11ea-a16d-e311dc18d1ae.html?utm_medium=social&utm_source=twitter&utm_campaign=user-share
TRENTON, N.J. – Assembly Republican Leader Jon Bramnick criticized Democrat efforts to ruin the 'gig economy,' where many people use independent contractor jobs to supplement income.
"This attempt by politicians to re-engineer the gig economy reduces job opportunities for those who, again, need them the most," said Bramnick (R-Union). "These are moms and dads looking to better their income or simply earn enough to afford the high taxes Democrats force them to pay. This one-size-fits-all policy is bad for the New Jersey economy."
Bramnick noted that other than ride-sharing drivers, workers such as truckers, journalists, childcare workers, landscapers, hairdressers, musicians and others could be at risk of losing income.
Here is a link with the most common independent contractors by industry: https: / / payable.com / blog / industries-most-1099-workers.
A freelance writer from South Jersey wrote in the Philadelphia Inquirer how she will have to leave the state or risk losing half her income. Another article on 101.5 noted that many working parents use independent contractor gigs for the flexible hours and supplemental income that address their needs.
Executive Summary: Recently, New Jersey took several steps to severely restrict the use of independent contractors or gig workers in the Garden state. The latest effort is Bill S4204, which creates a presumption of employment status for contractors.
New Jersey bill S4204 will apply to all businesses within the state. In short, the law states that any person who performs a service for remuneration is considered an employee for purposes of all the state’s employment laws, “unless and until it is shown to the satisfaction of the Commissioner of Labor and Workforce Development” that the service provider meets a newly revised ABC test. The bill delegates to the Commissioner of Labor the authority to determine whether a contractor meets the ABC test and is thereby a bona fide independent contractor. Additionally, the bill also revises the ABC test, making it much more difficult for a worker to be considered an independent contractor.
Analysis: S4204 revises the ABC test, keeping the “A” portion of the test intact, but amending the “B” and “C” prongs. All three prongs of the test must be met for a worker to be considered an independent contractor.
A. The first portion of the test, the “A” prong, often is referred to as the control test and reads: “[t]he individual has been and will continue to be free from control or direction over the performance of the service, both under the individual’s contract of service and in fact.” This portion of the test generally refers to who sets the hours of work, the manner in which the work is performed, or where the work is performed. This tends to be the easiest prong for independent contractors to meet.
B. The amended “B” prong seeks to add the proposed italicized language and delete the stricken language and states: “[t]he individual’s service is outside the usual course of the business for which that service is either performed or the service is performed outside all places of business of the employer for which the service is performed.” The revision to the B prong prevents companies from meeting this prong by showing that the service providers performed their work at a different location than the company’s. Rather, now companies must show that the service providers’ businesses are different than the company’s business. So, for example, doctors who contract with a health care group, an attorney contracted by a law firm or a political consultant contracted to a political campaign may not be able to meet the B prong. In terms of the transportation industry, the modification of the B prong test subjects this law to preemption challenges under Federal Aviation Authorization Act (FAAA).
C. Finally the “C” prong was modified to add the following phrase: “The individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the work performed.” Prior to this revision, contractors could meet this prong by simply demonstrating they possessed their own business or company separate from the company with whom they contracted. The bill adds the requirement that service providers must actually be performing the services of their business to qualify for the exemption. In other words, a plumber must be providing plumbing services to qualify for this prong. Conversely, a lawyer who contracts with a university to teach a class will most likely not meet prong C, since he is not providing legal services to the university.
According to a very strict interpretation of the bill’s language, even if service providers meet the ABC test, they could still be considered employees “unless and until” the Commissioner finds otherwise. Technically, this provision could prevent a company in private litigation from asserting a valid defense that a service provider is an exempt contractor and not an employee. Assuming the company meets the ABC test, under a strict interpretation of the bill, the company must still show that the Commissioner has found the service provider meets the ABC test. For “unless and until” the Commissioner does so, the service provider is presumed to be an employee. If the bill becomes law and is enforced in accordance with this interpretation, it likely will face constitutional challenges.
Interestingly, this bill was proposed to mimic the passage of AB 5 in California, which adopted a similar ABC test and garnered much media attention. Ironically, although the California law made it harder for some companies to use independent contractors, the same law actually made it easier for other companies. In California, unlike the New Jersey proposal, the ABC test only applies to non-exempt industries. The law actually eliminated the ABC test for certain exempt industries, allowing them to use the Borello test or economic reality test, which is a much more lenient standard. See, https://www.dir.ca.gov/dlse/faq_independentcontractor.htm. The New Jersey law would not provide for similar exemptions and, if passed, would make New Jersey’s law regarding independent contractors the most restrictive in the nation.
The Bottom Line: If the bill passes, which we predict it will, every company should review all 1099s issued in 2019 to assess the risk with each relationship and determine how to mitigate the risk created by these relationships. It is also recommended that companies review cash ledgers for recurring payments to identify potential hidden contractors. It is expected that entire business models may be impacted by this legislation, and companies should not rely on prior industry practices to assess their state of compliance.
If you have any questions about this bill or the use of independent contractors, please feel free to contact Salvador Simao, firstname.lastname@example.org, the North East Regional managing partner in our New Jersey office. You may also contact the FordHarrison attorney with whom you usually work.
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