NLRB Memo Lays Out Misclassification Theory

Posted by National Alliance for Fair Contracting on

August 30, 2016
By Lawrence E. Dubé

Aug. 29 – The National Labor Relations Board’s general counsel released a legal memorandum explaining his theory that an employer committed an unfair labor practice by misclassifying employee drivers as independent contractors (Pac. 9 Transp., Inc. , NLRB Div. of Advice, No. 21-CA-150875, 12/18/15 [released 8/26/16]).

The unfair labor practice theory involving worker misclassification hasn’t previously been tested before the NLRB or the courts, but the memorandum shows that’s the approach the general counsel will likely follow in other independent contractor disputes.

In the memorandum released Aug. 26, the NLRB’s Division of Advice wrote that by misinforming drivers they were independent contractors, Pacific 9 Transportation Inc. interfered with the drivers’ rights under the National Labor Relations Act to organize or engage in concerted activity for their mutual aid or protection.

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NLRB Will Report Federal Contractors’ Labor Violations

Posted by National Alliance for Fair Contracting on

July 6, 2016
By Lawrence E. Dubé

July 5 – The National Labor Relations Board is preparing to report alleged labor law violations by government contractors named by regional directors in unfair labor practice complaints, the agency disclosed in a memorandum to its field offices.

Associate General Counsel Anne Purcell wrote July 1 in Memorandum OM 16-23 that the NLRB will ask charged employers to provide information that could identify them as federal contractors.

When an employer is named in an unfair labor practice complaint, the NLRB will report the information to a federal database to comply with the Fair Pay and Safe Workplaces executive order President Obama signed on July 31, 2014.

The executive order requires the NLRB and other agencies to assist contracting agencies and officials in assessing labor law violations by employers with government contracts valued at more than $500,000.

The NLRB won’t forward information to the database if an employer settles or resolves an unfair labor practice case before the issuance of a complaint.

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The Death of an Employer Scam

Posted by National Alliance for Fair Contracting on

One of the most pervasive scams that employers use to lower their workers’ wages is misclassification – that is, turning their workers into independent contractors or temps when they are actually employees. Misclassification shouldn’t be mistaken for the whim of an errant employer. On the contrary, it’s a strategy that has been used to transform entire industries.

From an employer’s perspective, the benefits of misclassification are clear. Turning a worker into a temp or a free agent obviates any need to provide him with benefits. It shields the employer from legal liability for health and safety violations, for industrial accidents, or from wage and hour violations. It invariably lowers such workers wages as well. It makes it impossible for workers to form unions.

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