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NLRB Solicits Briefs on Independent Contractor Misclassification as ULP Issue

National Labor Relations Board Administrative Law Judge Arthur J. Amchan had ruled in Velox Express, Inc. that misclassification of employees as independent contractors violates Section 8(a)(1) of the National Labor Relations Act. 2017 NLRB LEXIS 486 (Sept. 25, 2017). Now the case is before the NLRB, and the Board has invited interested parties to file amicus briefs to address “under what circumstances, if any, the Board should deem an employer’s act of misclassifying statutory employees as independent contractors a violation of Section 8(a)(1) of the National Labor Relations Act.” Briefs must be submitted on or before April 16, 2018.

Velox Express operates a courier service. In 2016, Velox employed what it considered independent contractors to drive to hospitals and other medical facilities to collect medical samples for diagnostic laboratories. Jeannie Edge briefly worked as a driver for Velox on an independent contractor basis until Velox terminated her contract in August 2016. Edge filed an unfair labor practice (ULP) charge with the NLRB. In an unfair labor practice complaint, the General Counsel alleged that Edge was an employee, not an independent contractor, and that Velox had violated Section 8(a)(1) of the Act by the mere act of misclassifying its drivers as independent contractors.

The Board reviews multiple factors, such as extent of control by the employer, in determining whether an individual is an employee or independent contractor. If an individual is classified as an independent contractor, rather than an employee, the individual is not protected by Sections 7 and 8 of the Act. After reviewing the factors, Judge Amchan determined that the drivers were employees. With almost no analysis, he then found that:

By misclassifying its drivers, Velox restrained and interfered with their ability to engage in protected activity by effectively telling them that they are not protected by Section 7 and thus could be disciplined or discharged for trying to form, join or assist a union or act together with other employees for their benefit and protection.

Velox then appealed that decision to the Board.

Judge Amchan’s ruling, if upheld by the Board, has serious policy considerations for employers. Businesses that employ individuals who they classify as independent contractors could face unfair labor practice liability if the classification is mistaken. It behooves interested employers to give the Board their views. 

Jackson Lewis P.C. © 2018


About this Author

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

Philip B. Rosen, Jackson Lewis, Preventive Practices Lawyer, Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.