You’ve heard plenty about the evils of misclassifying employees as independent contractors. And, according to the DOL, among others, you’re still doing it wrong. The NLRB doubled down on this recently when the NLRB General Counsel released an advice memorandum stating that an employer’s misclassification of employees as independent contractors also violates the National Labor Relations Act.
In a nutshell, a freight cargo employer informed its drivers that they were all independent contractors and therefore the company’s recent settlement of unfair labor practice charges did not apply to the drivers. The NLRB General Counsel took umbrage with this position and concluded that an employer’s misclassification of employees as independent contractors “chills” employees’ exercise of Section 7 rights under the NLRA. The General Counsel found that there could be no conceivable reason why an employer would treat employees as independent contractors other than to chill Section 7 rights. Really?
So, add the NLRA and potential unfair labor practice charges to the “parade of horribles” employers face when they misclassify employees as independent contractors. And, add misclassification as another attempt by the NLRB to grossly expand its own jurisdiction under the NLRA.