Employers face a litany of liabilities if they misclassify employees as independent contractors. But at least worker misclassification isn’t by itself a labor law violation, according to a recent decision from the National Labor Relations Board.
The NLRB ruled Aug. 29 that it’s not a violation of the National Labor Relations Act for an employer to tell workers they are independent contractors when in fact they’re employees under the NLRA. In Velox Express, the board upheld an administrative law judge’s decision that a group of medical equipment delivery drivers were Velox employees. But a 3-1 board majority reversed the ALJ’s finding that the employer’s misclassification “restrained and interfered” with those employees’ ability to engage in protected labor activity.
The Velox decision is the latest development under the Trump administration’s NLRB that limits companies’ liability in employee-independent contractor disputes. In its January decision concerning SuperShuttle, a board majority found that the shuttle drivers were independent contractors because they enjoyed “entrepreneurial opportunity” under the board’s multifactored common law test. In May, the NLRB General Counsel’s Office issued an advice memo finding that Uber drivers weren’t the company’s employees as defined by the NLRA.
Wrongly telling employees that they’re independent contractors might still get an employer in trouble under the NLRA if the employer does it to chill workers from unionizing or engaging in other protected activity, however.