By: Christopher J. Saugstad<\/p>\n\n\n\n
September 6, 2019<\/p>\n\n\n\n
On August 29, 2019, the National\nLabor Relations Board (the \u201cBoard\u201d) determined that employers do not violate\nthe National Labor Relations Act (the \u201cNLRA\u201d) merely by misclassifying\nemployees as independent contractors when they should have been classified as\nemployees.<\/p>\n\n\n\n
In Velox Express, Inc<\/em>.,\n15-CA-184006, 368 NLRB No. 61 (2019), the Board reversed a prior Obama-era decision\nwhich ruled Velox had unlawfully interfered with its workers\u2019 rights under the\nNLRA. Velox Express, Inc. (\u201cVelox\u201d) is a medical courier service in which a\nnumber of its drivers were classified by Velox as independent contractors. The\nCharging Party in Velox<\/em> raised group complaints of the independent\ncontractor classification and was subsequently discharged.<\/p>\n\n\n\n Initially, an Administrative Law\nJudge ruled Velox had interfered with workers\u2019 rights by Velox\u2019s misclassification\nof the Charging Party. Upon review, the Board requested briefing and received\nthirteen briefs from twenty-eight interested parties. The Board, utilizing\ntheir recent decision in SuperShuttle DFW, Inc<\/em>., 367 NLRB No. 75 (2019),\ndetermined the workers were actually employees and therefore protected by the\nNLRA. The Board held Velox had violated the NLRA when it discharged the\nCharging Party for bringing to management\u2019s attention group complaints regarding\nits treatment of employees.<\/p>\n\n\n\n Notably, however, the Board\nreversed the judge\u2019s decision that the misclassification of independent\ncontractors violated the NLRA as a separate and distinct violation. The Board\nreasoned \u201cerroneously communicating to workers that they are independent\ncontractors does not, in and of itself, contain any \u2018threat of reprisal or\nforce or promise of benefit.\u2019\u201d The Board held this type of misclassification\nwould not inherently threaten employees\u2019 adverse actions like discharge if they\nwere to engage in protected activities under the NLRA; nor would the\ncommunication of classification solely show it was futile for the workers to\nengage in such protected activities. The Board explained, \u201c[i]n and of itself,\nan employer\u2019s communication of its position that its workers are independent contractors\nsimply does not carry either implication.\u201d<\/p>\n\n\n\n Additionally, the Board held that finding\nthat a misclassification created a violation of the NLRA would deter employers\nfrom creating independent contractor relationships and would improperly shift\nthe burden of proof to employers.<\/p>\n\n\n\n The Board\u2019s recent ruling in Velox\n<\/em>means the Board has removed itself from any future decisions based solely\non worker misclassification. Unlike employees, who enjoy protected rights under\nthe NLRA including unionization, independent contractors are not covered by the\nNLRA and are therefore not protected by it either. While this decision is\nviewed as a victory for employer, the importance of properly classifying and\npaying employees remains critical to avoid possible violations of the Fair\nLabor Standards Act (the \u201cFLSA\u201d).<\/p>\n\n\n\n Lindner & Marsack has\nrepresented employers in their dealings with unions for over a century. If you\nhave any questions about this case or any other aspect of classic\nlabor-management law, please feel free to contact us at any time. <\/p>\n","protected":false},"excerpt":{"rendered":" By: Christopher J. Saugstad September 6, 2019 On August 29, 2019, the National Labor Relations Board (the \u201cBoard\u201d) determined that employers do not violate the National Labor Relations Act (the \u201cNLRA\u201d) merely by misclassifying employees as independent contractors when they should have been classified as employees. In Velox Express, Inc., 15-CA-184006, 368 NLRB No. 61 […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[6],"tags":[],"class_list":["post-604","post","type-post","status-publish","format-standard","hentry","category-nlrb"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p5WrIF-9K","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts\/604","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/comments?post=604"}],"version-history":[{"count":1,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts\/604\/revisions"}],"predecessor-version":[{"id":605,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts\/604\/revisions\/605"}],"wp:attachment":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/media?parent=604"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/categories?post=604"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/tags?post=604"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}