“As the NLRB now concedes, there is nothing remotely ‘coercive’ about identifying a worker, even mistakenly, as an independent contractor rather than an employee.”
—Cory Andrews, WLF Vice President of Litigation

WASHINGTON, DC—The National Labor Relations Board (NLRB) yesterday reversed an Administrative Law Judge’s (ALJ) decision that, if allowed to stand, would have automatically converted a company’s honest but mistaken classification of an employee as an independent contractor into a federal unfair labor practice. The decision was a victory for WLF, which filed an amicus curiae brief in In re Velox Express, Inc. contending that such a rule would impose novel, unprecedented liability on vast numbers of American businesses to the detriment of the nation’s economy.

For more than 70 years, federal court precedent and the NLRB’s own decisions have consistently treated a worker’s employment status as a threshold, jurisdictional question rather than a standalone basis for a violation of the National Labor Relations Act (NLRA). Today’s decision retains that traditional approach to classification determinations and wisely declines to expand NLRA liability any further.

The Board’s decision agrees with WLF that worker classification is inherently fact-intensive and often fraught with difficulty. Reasonable minds can differ in applying the ten common-law agency factors, and they often do. Indeed, federal appeals courts have reversed the NLRB itself many times by for the agency’s initial, erroneous classification decisions. Given how easily good-faith worker misclassifications occur, mere misclassification is no basis for federal liability.

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