loader
Page is loading...
scaffold

The Dizzying World of Worker Classification Just Got Slightly Less Harrowing

Scott Witlin, Los Angeles Attorney

Scott J. Witlin

Partner
Wage and Hour Co-Chair

No issue is less understood and more consequential for employers than the proper classification of workers as employees or independent contractors. Even under traditional legal regimes, the multi-factor tests used by the IRS and the NLRB differ from one another while purporting to apply the same standard. Plus, various other agencies have created new “ABC” tests and more encompassing standards to determine who is an employee – all reaching to extend these agencies’ protections of the laws they are charged with enforcing.

While the NLRB has done nothing to clarify how one should classify any particular worker, it has just pushed back against an attempt to increase the consequences. The NLRB’s last pronouncement in that regard was addressed in SuperShuttle DFW, Inc. in January 2019.

A misclassification of workers as independent contractors rather than employees can lead to violations of the NLRA as well as other laws. This week, in Velox Express, the NLRB was asked to find that the misclassification was itself an independent violation of the NLRA.

By a 3-1 vote, the NLRB rejected the contention that mere misclassification violates the NLRA. The decision stated, “it is a bridge too far for us to conclude that an employer coerces its workers in violation of [the Act] whenever it informs them of its position that they are independent contractors if the Board ultimately determines that the employer is mistaken.”

In its decision, the majority noted the difficulty in making these classifications:

“Independent-contractor determinations are difficult and complicated enough when only considering the Act, but the Act is not the only relevant law. An employer must consider numerous Federal, State, and local laws and regulations that apply a number of different standards for determining independent-contractor status. Unsurprisingly, employers struggle to navigate this legal maze. Further, in classifying its workers as independent contractors, an employer may be correct under certain other laws but wrong under the Act—which is all the more reason why it would be unfair to hold that merely communicating that classification is unlawful.”

Because of the various, complicated and at times conflicting standards, it is always wise to consult with competent counsel before deciding upon a proper classification. Notwithstanding those difficulties, it may be some relief for employers to know that making a classification mistake in and of itself will not carry with it the additional burden of violating the NLRA.


LEAVE YOUR COMMENT

RELATED ARTICLES

Another Win for Employer Property Rights: NLRB Loosens Discrimination Definition

September 13, 2019 | Labor Relations, National Labor Relations Board

At Long Last, NLRB Adopts Contract Coverage Over Waiver

September 12, 2019 | Labor Relations, National Labor Relations Board

Labor Board Clears Boeing For Takeoff, Ices Funky Bargaining Unit

September 10, 2019 | Labor Relations, National Labor Relations Board

This is the Clause that Always Ends, It Stops Here and Now, My Friends

August 28, 2019 | Labor Relations, National Labor Relations Board

NLRB Announces New Standard for Off-Duty Onsite Contractors' Access to Property

August 27, 2019 | Labor Relations, National Labor Relations Board

Subscribe

Do you want to receive more valuable insights directly in your inbox? Visit our subscription center and let us know what you're interested in learning more about.

View Subscription Center
RELATED TOPICS
NLRB
nlra
independent contractors
Trending Connect
We use cookies on this site to enhance your user experience. By clicking any link on this page you are giving your consent for us to use cookies.