Could Worker Misclassification be an Unfair Labor Practice?

By: Christopher S. Drewry, Drewry Simmons Vornehm, LLP

While the Wage and Hour Division of the United States Department of Labor has already increased its enforcement of worker misclassification under the Fair Labor Standards Act (thus impacting wage and overtime considerations where an individual is treated as an independent contractor or an employee), a recent complaint with the National Labor Relations Board (“NLRB”) proves that the scope of worker misclassification issues might just be expanding even more.

On April 18, 2016, the Regional Director for the NLRB’s Los Angeles office issued a Complaint and Notice of Hearing based upon an unfair labor practice (“ULP”) charge initially filed by the International Brotherhood of Teamsters through its’ Justice for Port Truck Drivers campaign.  In essence, the Complaint asserts that Intermodal Bridge Transport (“IBT”) “misclassified its employee drivers as independent contractors, thereby inhibiting them from engaging in Section 7 activity and depriving them of the protections of the [National Labor Relations Act].”  The theory behind the ULP charge and complaint is that the Act gives employees the right to unionize and engage in other protected, concerted activity, and that if an employer misclassifies a worker as an independent contractor, it unlawfully deprives the worker of those rights.

As this particular case continues, IBT will file its answer and a hearing will be held before an administrative law judge, who will decide if IBT violated the law. The ALJ’s decision will be subject to appeal to the NLRB in Washington, and the NLRB’s decision is then subject to review by a federal court of appeals.  In other words, this case is very early in the legal process and there are a lot of questions to be answered.  Nevertheless, this is an important one to watch given the potential implications involved. This case also provides yet another example of how critical it is for companies to ensure compliance with respect to the use of independent contractors.