Labor Board Takes Up Debate Over Worker Misclassification

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By Lawrence E. Dubé

Interested parties can join a debate on whether an employer violates the National Labor Relations Act if it misclassifies employees as independent contractors.

The National Labor Relations Board is considering an unfair labor practice case against Velox Express Inc., and it has invited the filing of briefs in the case to address the misclassification issue, which has been controversial.

The board has never held misclassification of employees is an independent violation of the NLRA. However, former general counsel Richard F. Griffin (D) last year persuaded several administrative law judges that simply misclassifying workers is an unfair labor practice even if it’s not accompanied by other NLRA violations.

Griffin’s theory has been criticized as suggesting the board stray from traditional labor law issues within the agency’s expertise to find unfair labor practices in employment disputes that are really about wage and hour issues or other matters outside the board’s jurisdiction. The NLRB’s invitation for outside briefs in Velox indicates it wants to confront and resolve the issue.

In Velox, Administrative Law Judge Arthur Amchan wrote a September 2017 decision accepting Griffin’s argument that by misinforming drivers they are independent contractors, a logistics company sent the message they had no right to join or support unions or to act together with other employees for their mutual aid or protection. Such a message violates a prohibition on employers interfering with employees’ NLRA rights, Amchan said.

At least one other ALJ has adopted Griffin’s theory. In Intermodal Bridge Transport, an ALJ agreed with Griffin that misclassifying employees as independent contractors is an unfair labor practice independent of any other violation. Intermodal Bridge has appealed to the board, but attorneys haven’t yet filed briefs in the case.

The current general counsel, Peter B. Robb (R), informed NLRB employees shortly after he was sworn in late last year that he was cancelling Griffin’s “initiative” on the misclassification issue. In November, just days after Robb was sworn in, NLRB staff counsel filed a brief defending the ALJ’s ruling in Velox. However, the board’s invitation for additional briefs in Velox will give Robb an opportunity to present his own views on the subject.

Under the board’s invitation, nonparties may file amicus briefs with the board on or before April 16, using the NLRB’s e-filing system.

The case is Velox Express, Inc., 2018 BL 51451, N.L.R.B., Case 15-CA-184006, invitation to file briefs 2/14/18

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