By former Associate Jack Blum
Written with assistance from Daniel Bosworth, law clerk.
After the Department of Labor withdrew its Obama-era guidance taking a restrictive view of the situations in which workers can legitimately qualify as independent contractors, as opposed to employees, many speculated that the Trump administration would be giving up its predecessor’s campaign against contractor misclassification and that further developments would be driven by state and local government agencies and private plaintiffs. In the last few weeks, however, the National Labor Relations Board (NLRB) has entered the fray over worker misclassification with a recent enforcement action asserting that misclassifying employees as independent contractors is a standalone unfair labor practice under the theory that misclassification interferes with rights under the National Labor Relations Act (NLRA) (which applies only to employees, not contractors) by asserting that the workers in question do not have NLRA rights at all because they are not employees. The development of a new front in the battle over misclassification at the NLRB should be closely monitored by employers.
