Key Takeaways:

• A split NLRB ruled that classifying workers as independent contractors does not alone contain any threat of reprisal, force, or promise of benefit

• But if a wrongly classified employee engages in protected activities and is met with threats of reprisals, that could constitute a violation of the NLRA

• Employers are cautioned to ensure that their employees and contractors are properly classified

A split National Labor Relations Board (NLRB) ruled August 29, 2019 that misclassifying workers as independent contractors does not constitute a violation of the National Labor Relations Act (NLRA) absent any other violations of the NLRA. The board noted that classifying workers as independent contractors does not, in-and-of-itself, contain any threat of reprisal, or force, or promise of benefit that violates the NLRA.

However, if a wrongly classified employee engages in protected activities and is met with threats or reprisals, that conduct could constitute a violation of the NLRA. Accordingly, the board found that firing the driver after she complained about the misclassification was a violation of the NLRA and upheld the lower ruling. The majority rejected the argument asserted by the dissent that misclassification itself chills the exercise of statutory rights.

Because of potential implications under the NLRA, as well as the Fair Labor Standards Act and other statutes, employers are cautioned to ensure that their employees and contractors are properly classified.

If you have questions about properly classifying employees, please reach out to:

• Caroline J. Berdzik
• Peter J. Woo
• Kristin Klein Wheaton
• Or another member of our Employment and Labor practice