No Violation of NLRA for Misclassification of Workers as Independent Contractors

In yet another retreat from the positions staked out by the National Labor Relations Board under the Obama administration, the current Board has now stated that the misclassification of workers as independent contractors is not a violation of the National Labor Relations Act.

Back in 2015, the Board’s Office of General Counsel issued an advice memo in Pacific 9 Transportation Inc., in which the OGC asserted that the misclassification of independent contractors is a violation of the Act. This was followed by another advice memo from 2017 in Telemundo Television Studios, in which the OGC reiterated the same position. This position was adopted by an administrative law judge in the Velox Express, Inc. case. The decision was quite controversial, and General Counsel Peter Robb indicated an interest in reviewing this issue, as set forth in his December 1, 2017 memorandum, GC 18-02 “Mandatory Submissions to Advice.” The Board then invited briefing on this issue, and has now issued a decision in the Velox Express, Inc. case, overturning the ALJ’s opinion and stating that “an employer’s misclassification of its employees as independent contractors does not violate the Act.”