NLRB Finds Door-to-Door Solicitors are Employees

A non-profit organization that distributes food to low-income individuals funds its operations by using canvassers to solicit contributions from area residents. The non-profit requires the canvassers to be on time for transportation to and from the areas they target for solicitations, but otherwise canvassers largely work unsupervised. The non-profit considered the canvassers independent contractors, and their earnings were reported on an IRS 1099 form.

The non-profit ended its relationship with a canvasser shortly after a union began organizing them. The union filed unfair labor practice charges against the non-profit over this “firing.” An administrative law judge dismissed the charges because the canvassers were independent contractors rather than employees, and independent contractors cannot unionize under the National Labor Relations Act.

The National Labor Relations Board disagreed, and found that the non-profit’s lack of supervision did not automatically make the canvassers independent contractors.

Companies that label their workers independent contractors are not immune from unionization efforts. Even if a company classifies its workers as independent contractors, treats them like independent contractors, and pays them like independent contractors, and the workers agree they are independent contractors and act like independent contractors, the Board may still find that they are employees. Here, the Board ordered the non-profit to reinstate the terminated worker, pay him back pay for the time he was off work, and allow him to renew his union organizing efforts.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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