Under current National Labor Relations Board
interpretations of the National Labor Relations Act, employers
may only be punished for misclassifying their employees as
independent contractors if a separate violation of the NLRA is
present. As the U.S. economy increasingly focuses on gig work,
millions of workers are affected by misclassification, which
results in lower pay and fewer employment protections.
Misclassification also strips the government of billions of
dollars in tax revenue.
The NLRB considered the issue of making the
misclassification of employees a standalone violation of Section
8(a)(1) of the NLRA in the case Velox Express, Inc., yet it
declined to do so. This decision is not in accord with the
realities of the modern gig economy and the changing nature of
the workplace. This Note argues that the NLRB should find
that standalone violations of Section 8(a)(1) of the NLRA exist
when employers misclassify workers as independent
contractors rather than as employees. Misclassification benefits
employers while substantially harming employees. Employers
who misclassify their workers should face the repercussions of
an NLRA violation each time they misclassify a worker. This
standalone violation would further Congress’s stated purposes
for the NLRA and would provide gig workers with protections
associated with the employment relationship.
Weaver, Julia H.
"Two Sides of the Same Coin: Examining the Misclassification of Workers as Independent Contractors,"
Georgia Law Review: Vol. 55:
3, Article 8.
Available at: https://digitalcommons.law.uga.edu/glr/vol55/iss3/8