The National Labor Relations Board has never held that the misclassification of employees is an independent violation of the National Labor Relations Act. However, former NLRB General Counsel Richard Griffin (D) (an Obama appointee) last year persuaded several Administrative Law Judges that simply misclassifying workers is an unfair labor practice even if it is not accompanied by other violations of the National Labor Relations Act.
Griffin’s theory has been criticized as suggesting the Board has strayed too far from traditional labor law issues within the agency’s expertise to find unfair labor practices in employment disputes that are really about wage and hour issues or other matters outside the Board’s jurisdiction.
In Velox, Administrative Law Judge Arthur Amchan accepted Griffin’s argument that by misinforming drivers they are independent contractors, a logistics company sent the message that they had no right to join or support unions or to act together with other employees for their mutual aid or protection. Such a message violates a prohibition on employers interfering with employees’ NLRA rights.
At least one other ALJ has adopted Griffin’s theory. In Intermodal Bridge Transport, an ALJ agreed with Griffin that misclassifying employees as independent contractors is an unfair labor practice independent of any other violation.
The current NLRB General Counsel, Peter Robb (R) (a Trump appointee) informed NLRB employees shortly after he was sworn in late last year that he was cancelling Griffin’s “initiative” on the misclassification issue. In November, just days after Robb was sworn in, NLRB staff counsel filed a brief defending the ALJ’s ruling in Velox. However, the Board’s invitation for additional briefs in Velox will give Robb an opportunity to present his own views on the subject.
Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.