Reversing the trend of findings by administrative law judges in the National Labor Relations Board, the Board itself ruled yesterday that misclassifying an employee as an independent contractor alone does not violate the National Labor Relations Act (NLRA).
A former employee of Velox Express, Inc., a medical courier service, claimed she was discharged in violation of her Section 7 rights under the NLRA, which protects all non-supervisory employees from adverse action when they engage in concerted activity for their mutual aid or protection in employment. In this instance, worker Jeannie Edge claimed that she was discharged after she complained that she and other workers were misclassified as independent contractors rather than employees.
The Board in a 3-1 decision said Velox Express Inc. did not violate the NLRA just by telling its drivers that they were independent contractors, because it was merely expressing a legal opinion and not threatening or coercing them. "An employer's mere communication to its workers that they are classified as independent contractors...does not prohibit the workers from engaging in (organizing), or threaten them with adverse consequences for doing so," the board majority wrote.
Although the NLRA does not cover public employee/employer relationships, the state labor board is generally greatly influenced by NLRB decisions. While it is a positive sign for employers that the NLRB is not willing to equate a misclassification with a deprivation of a worker’s right to engage in protected concerted activity, employers should remain mindful that misclassification of workers as independent contractors remains an important topic and one that the Department of Labor zealously investigates, regardless of whether the misclassification also violates the NLRA.
