Labor Secretary Nominee Fumbles AB 5 Hot Potato at Congressional Hearing

President Joe Biden’s nominee for the nation’s top labor secretary, Julie Su, appeared before the House of Representatives Committee on Education and the Workforce on Wednesday, June 7, 2023—but only after being threatened with a subpoena for her eleventh-hour attempt to evade the hearing. 

Her continued evasiveness was on full display during the hours-long grilling on Capitol Hill, especially when it came to defending California’s disastrous anti-independent contractor law AB-5 (Assembly Bill 5) that she endorsed and enforced during her tenure as California’s labor secretary from 2019 to 2021.

Anyone who watched the hearing would readily conclude that AB 5 is a hot mess that must not become a model for the nation given the extreme lengths that Julie Su, with help from Democrat allies on the committee, tried to distance herself from the law that has cost hundreds of thousands of California freelancers their livelihoods since it was enacted in 2020. When asked if AB 5 is a good law, Su became frazzled and was unable to cough up an answer. 

Time and again Su assured the committee that AB 5 and the ABC test would never see the light of day in federal law, an unspoken confirmation that AB 5 is indeed an unmitigated disaster that should never be replicated on a national level. 

This must come as a surprise to Su’s colleagues in the Department of Labor’s Wage and Hour Division, whose proposed new six-factor rule to restrict independent contracting nationwide is modeled precisely after California’s ABC test, the strictest classification test in the country. In its 184-page rule—crafted in part by Su—USDOL lauds California’s ABC test while lamenting the fact that they cannot, by statute, deploy the onerous ABC test verbatim into the Fair Labor Standards Act. However, as pointed out by Rep. Kevin Kiley (R-California) at the hearing, the language in the proposed rule mimics the ABC test nonetheless. 

On the question of California’s controversial Proposition 22, Su also deflected. Passed in 2020 by almost 60 percent of voters, the ballot initiative provides a carve-out from AB 5 for app-based rideshare and delivery platforms, allowing drivers in California to remain independent contractors. One would think that California’s former labor secretary would behave like any bona fide Big Labor proponent and readily denounce Prop. 22’s carve-out for Uber and Lyft, et al. But when asked by Rep. Kiley how she voted on Prop. 22, Su implausibly claimed she couldn’t remember—undoubtedly to the chagrin and shock of her allies in organized labor who might have tuned in to the hearing only to see their favored nominee crumble under simple lines of questioning.  

It must be galling for the labor movement—as well the law’s author, former Assemblywoman Lorena Gonzalez who now heads California Labor Federation—to witness their labor champion Julie Su fail to denounce Prop. 22 and not stand up for AB 5 and its onerous ABC worker classification test. Su’s duplicitous answers and contradictions about policies she championed reveal her weaknesses that have likely stymied her final confirmation vote in the U.S. Senate as her fate continues to hang in the balance. 

Whether evading important questions about her position on failed labor policies, denying her support of destructive joint employer standards for the franchising industry, or deflecting any responsibility for her role in the $32-$40 billion of fraudulent unemployment insurance claims in California doled out to criminals during the pandemic, Su’s slippery modus operandi is not a fit for the nation’s top job at the Department of Labor. Those few holdouts in the Senate should vote no on her confirmation and spare the nation of California’s fiascos.