Freelance is one of those delightful words that wears its history on its sleeve: It was first used to describe medieval knights who weren’t bound exclusively to one feudal lord but were available for hire. In Sir Walter Scott’s 1819 novel Ivanhoe, a lord says, “I offered Richard the service of my Free Lances… thanks to the bustling times, a man of action will always find employment.” Today over sixty million Americans work as freelancers in myriad flexible, freely chosen ways.
But these are just some of the people whose work falls outside the typical 9-5 job. Many Americans have seasonal jobs—for example, as guides on overnight wilderness trips. Some are entrepreneurs, in charge of hustling for themselves. Some are in management programs where they get on-the-ground training. Some work for tips or bonuses.
Through a series of nonsensical labor regulations, the government insists on trying to narrow the field of what’s possible in the American workplace.
None of these ways to earn a living fit neatly into the government’s idea of how people should work and what they should earn.
That’s part of what makes a free and dynamic economy so much more vibrant and productive than a centrally controlled one: No government, no matter how big, could design or imagine all the ways in which people choose to work together and create value. The diversity of American working arrangements is something to show off and celebrate.
But instead, the federal government is selling a fantasy of workplace standardization: that there’s a right wage for people to earn, no matter the circumstance, and a right arrangement between employers and employees.
It’s wishful (and wrong) thinking. Minimum wage rules—the government’s preferred solution for workers—are a “blunt instrument,” economist David Neumark explains, that don’t reduce poverty but do reduce workers’ hours, bonuses, and jobs.
And yet, through a series of nonsensical labor regulations, the government insists on trying to narrow the field of what’s possible in the American workplace.
Minimum Wage in the Mountains
What should be the hourly wage for a wilderness guide who camps out overnight with clients over multiple days? Who gets to decide?
Since 1998, Duke Bradford has run a wilderness company that takes people on multi-day river rafting trips in Arkansas Valley, Colorado, between the Ozark and Ouachita Mountains. Duke originally moved out to Colorado as a college student, planning to stay for only a year—he thought he’d go to law school after graduating—but life in the wilderness suited him.
“I just fell in love with the mountains,” he said, “and wanted to live in the outdoors.”
Duke hires about 100 seasonal guides, including college students, who live in his company’s housing and take clients on overnight trips. These guides earn a flat fee per trip.
“A lot of the rafting industry, they’re a migratory workforce,” he explained. His guides try to fit as many trips as possible into Colorado’s rafting season, then move on.
“Our compensation package is competitive,” Duke said. “People love to come to work.”
In 2021, after Duke ran his business successfully for more than 20 years, the federal government put it in jeopardy.
President Joe Biden issued an executive order that set a $15-per-hour minimum wage for federal contractors, with overtime pay set at $22.50. The Department of Labor enforced the order in a 2022 rule.
“The workers that will disproportionately benefit from this pay increase are women, workers of color, and workers with disabilities,” President Biden said at the time.
“We’re just not being understood here.”
Duke Bradford
Duke isn’t a federal contractor by any reasonable definition: He doesn’t work for the government. But in Colorado, over a third of the land is federally owned—and Duke pays the government for the right to take clients on federal land.
According to the Department of Labor, that makes Duke a federal contractor subject to the $15 minimum wage.
It’s a baffling decision: The government is using a 1940s-era procurement statute to force a new minimum wage on anyone whose business is tangentially connected to the government. The wage was clearly set with typical jobs in mind; yet it’s being applied to wilderness guides who work seasonally and go on overnight trips.
To make a $15 hourly wage feasible, Duke would have to raise prices, eliminate longer trips, or cut back on guides’ hours.
He called the minimum wage rule a “one size fits all” policy that doesn’t work for his business.
“We’re just not being understood here,” he says.
Managing Dairy Queen
Duke isn’t the only one frustrated with the Department of Labor.
Robert Mayfield is a Texas entrepreneur: His company operates 13 Dairy Queens and a Wally’s Burger Express in the Austin area. Robert’s father was a bona fide cowboy who opened the family’s first Dairy Queen in the 1940s. In photographs for a recent Fox Business article, Robert is shown in one of his restaurant kitchens, smiling, wearing a cowboy hat and holding a soft-serve ice cream.
Robert’s restaurants are successful because he developed a winning management formula: He offers most employees a competitive starting salary of $15 per hour—but for managers, he pays a low annual salary and incentivizes success with high bonuses tied directly to profits.
That pay structure works for the company. It attracts and rewards hardworking managers.
Robert’s managers should be exempt from regulations on overtime pay for hourly employees. According to Congress, workers in “executive, administrative, or professional” roles are exempt. Here’s the problem: Congress gave the Department of Labor authority to define what exactly “executive, administrative, or professional” means. And the Department of Labor says people need to make a certain minimum annual salary to qualify.
In 2019, the Department of Labor set that minimum at $35,568—meaning, anyone earning less than that would be considered an hourly employee. This year, in July, the agency increased that minimum salary requirement to $43,888.
Next month, in January, it’s set to increase again, to $58,656.
It’s a dramatic ratcheting-up that seems to be without limits—and it means Robert will have to rethink his incentive-based pay structure. A low base salary with high bonuses works for Robert’s business—and it works for his managers—but it doesn’t fit the Department of Labor’s idea of what executives should earn.
“It’s a bad deal,” Robert told Fox News Digital about the minimum salary increase. “Anybody that believed that was a good idea doesn’t own their own business.”
Suing for the Right to Freelance
Even workers who are supposed to benefit from the latest regulations are upset with the Department of Labor.
Kim Kavin is an editor and writer from New Jersey. After ten years working on staff at newspapers and magazines, she became a freelancer.
“I’ve been happy and successful in this career for 20 years,” Kim told a Congressional Subcommittee on Workplace Protections last year. “Being an independent contractor is my chosen way of working, as it is for tens of millions of Americans.”
In January 2024, the Department of Labor announced a new rule governing who can be classified as an independent contractor and who must legally be considered an employee. It’s a vague rule that relies on a balancing test of multiple factors, including “opportunity for profit or loss depending on managerial skill,” the “degree of permanence of the work relationship,” and the “skill and initiative” of the worker.
Acting Labor Secretary Julie Su claimed the new rule was necessary to protect workers from being misclassified as contractors.
“Misclassification particularly hurts workers who are already subject to significant risk of exploitation in the workplace,” she tweeted, “including women, people of color, and individuals with disabilities.”
But as Kim and two other freelancers—all women—wrote in an op-ed, the new rule just makes it harder for businesses to hire independent contractors.
They wrote:
This rule doesn’t actually protect freelance writers and editors like us, or any of the independent contractors in hundreds of professions ranging from trucking to financial services. Instead, this clear-as-mud rule gives the department carte blanche to impose regulatory wrath on any of our clients as it sees fit. Our clients then can face serious fines and penalties for working with us as independent contractors, and our freelance businesses go poof.
Legal Battles in Motion
Pacific Legal Foundation has helped every business owner and worker featured in this article—Duke Bradford, Robert Mayfield, Kim Kavin and her fellow freelancers—sue the Department of Labor.
The lawsuits are in various stages of appeals. Kim and the other freelancers lost in district court, but PLF has appealed to the Eleventh Circuit. Robert Mayfield lost at the Fifth Circuit, but PLF is asking for a rehearing en banc. Duke Bradford lost at the Tenth Circuit, but PLF has just asked the U.S. Supreme Court to hear his case.
It’s an uphill battle. But in mid-November, in a separate Nebraska case in which PLF is an amicus supporting the plaintiffs, the Ninth Circuit said the minimum wage rule that affects “federal contractors” like Duke Bradford is unlawful.
That means circuit courts are split on this issue—which makes it more likely the Supreme Court will want to weigh in. That could be good news for Duke. And it’s also good news for the other business owners and workers who want the Department of Labor to scale back its regulations on wages and work agreements.
As Robert Mayfield put it to Fox Business, the government’s policies are “going to hurt the people they say they’re going to help.”
What does Robert want the Department of Labor to do instead?
“I would ask ’em to back off,” he said.
