The National Labor Relations Board (“NLRB” or “Board”) recently issued a decision concluding that an employer’s misclassification of its employees as independent contractors does not, standing alone, violate the National Labor Relations Act (“NLRA”).  Velox Express, Inc. (August 29, 2019).

Velox Express, Inc. provides medical courier services through drivers who transport medical specimens to a laboratory for testing.  One of the drivers, Jeannie Edge, raised group complaints to Velox that it treated the drivers like employees even though they were classified (and wanted to be) independent contractors.  Velox terminated Edge’s contract, and she filed a charge against Velox.

Applying its recent decision in SuperShuttle, the Board determined that Velox’s drivers should have been classified as employees protected by the NLRA, and that Edge’s termination violated the NLRA.  However, the Board further concluded that Velox’s misclassification of its drivers did not violate the NLRA.  The Board rejected arguments that misclassification inherently interferes with, restrains, and coerces employees in the exercise of their rights under the NLRA.  The Board reasoned that erroneously communicating to workers that they are independent contractors does not, in and of itself, prohibit workers from engaging in protected activity, threaten them with adverse consequences for doing so, or promise them benefits if they refrain from doing so.  As such, misclassification, standing alone, is not a per se violation of the NLRA.

It should be noted, however, that misclassification can violate the NLRA if an employer misclassifies employees as independent contractors in retaliation for protected activity or if there are any accompanying unlawful threats or promises.