NLRB to Decide Key Independent Contractor Issue

February 23, 2018

The National Labor Relations Board is calling for public input in reviewing an administrative law judge's decision that found an employer violated the National Labor Relations Act by misclassifying workers as independent contractors.  In September 2017, Judge Arthur Amchan concluded that Velox Express “restrained and interfered” with workers’ rights under the NLRA “to engage in protected activity” by misclassifying them as independent contractors.  Independent contractors are not employees protected by the NLRA.  Until now, misclassification itself has never been held to be a violation per se, but if a company misclassified someone as an independent contractor, it could be held liable for any violations involving that person.  In December, HR Policy Association, as part of the Coalition for a Democratic Workplace, told the NLRB in a brief that the “case presents a significant and unprecedented diversion from established Board law,” and recommended the Board reject the judge’s decision.  The Board’s invitation for additional briefs in the Velox case will also provide General Counsel Peter Robb an opportunity to present his own views on the issue and offer insight as to why he rescinded his predecessor’s August 2016 Advice Memorandum, which drastically changed the interpretation of independent contractor status under the NLRA.