The National Labor Relations Board held that employers do not violate the National Labor Relations Act solely by misclassifying employees as independent contractors, according to nlrb.gov.
The board majority held that an employer’s communication to its workers of its opinion that they are independent contractors does not—standing alone—violate the NLRA if that opinion turns out to be mistaken. According to the decision, such communication does not inherently threaten those employees with termination or other adverse action if they engage in activities protected by the NLRA, nor does it communicate it would be futile for them to engage in such activities.
On Feb. 15, 2018, the board requested briefing in the case of Velox Express, Inc., 15-CA-184006, 368 NLRB No. 61 regarding the issue of whether employee misclassifications should be a violation of the NLRA. In response, the general counsel, respondent and charging party each filed a brief; 13 additional briefs were received from 28 amici.
In Velox Express, the board applied its recent decision in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019) to find the workers were employees—not independent contractors—and protected by the NLRA. Based on that determination, it held the employer violated the NLRA when it discharged one of these employees for bringing to management’s attention group complaints about the way the employer was treating its workers. However, the board majority held that the employer’s misclassification of its employees as independent contractors was not a separate violation.
