Joint MCAA/UA Brief Supports NLRB Determination on Worker Misclassification

May 4, 2018

MCAA and the United Association (UA) filed a joint brief in the Velox Express, Inc. case (Case No. 15-CA-184006) pending before the National Labor Relations Board (NLRB). The organizations voiced support for an NLRB Administrative Law Judge’s (ALJ) opinion that worker misclassification itself is an independent violation of workers’ rights under the National Labor Relations Act. The act includes provisions barring employer interference, restraints or coercion with respect to a worker’s right to engage in protected concerted activity.

In the case at issue, Velox Express classified couriers who pick up and deliver medical diagnostic test samples from physician sites and testing labs as independent contractors rather than as employees.

The ALJ noted that the NLRA contains an exception allowing for exclusion of legitimate independent contractors from protected “employee” status. The ALJ also stressed that the Supreme Court has directed that such exceptions are not to be expansively interpreted so as not to deprive legitimate employees of their rights under the NLRA.

Applying the NLRB’s multifactor analysis to the facts of the courier’s work with the company, the ALJ held that the balance of the factors swayed the judgment toward finding misclassification of the worker as an independent contractor rather than as an employee.

The ALJ went on to determine that, “By misclassifying its drivers, Velox restrained and interfered with their ability to engage in protected activity by effectively telling them that they are not protected by Section 7 and thus could be disciplined or discharged for trying to form, join or assist a union or act together with other employees for their benefit and protection.”

Expressing full support for the ALJ’s holding, the MCAA/UA brief, prepared by the O’Donohue law firm, concluded that “. . . a determination by the Board that improper misclassification of employees as independent contractors constitutes a stand-alone Section 8(a)(1) violation does not in any way restrict or interfere with an employer’s legitimate use of entities that are actual, bona fide [independent] contractors.”

Amicus briefs supporting the employer’s appeal of the ALJ decision argue that misclassification alone cannot be the basis for an independent violation of protected rights. They state that in all cases, the misclassification charge must be joined with some other related unfair labor practice charge.

MCAA will monitor developments on the matter and report on the final NLRB determination.

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