NLRB Smells Something Rotten, Seeks Input on Major Misclassification Decision


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A flight from Dubai to Amsterdam made an emergency landing last week after a fight broke out over a passenger’s excessive flatulence. The two Dutchmen sitting next to the flatulator asked him to cut it out, but he wouldn’t (or couldn’t) stop spreading his perfumery around the cabin. A fist fight broke out and the pilot diverted the flying stinkship to Vienna, where several passengers were removed. Read more here.

Something smells rotten to the NLRB as well, four months after an Administrative Law Judge (ALJ) ruled that independent contractor misclassification, by itself, can be an unfair labor practice, in violation of the NLRA. Read more about that decision here.

Last week, the Board posted a public invitation for any nonparties to file briefs on the issue, arguing why misclassification should be — or should not be — an automatic unfair labor practice or, if not automatic, under what conditions misclassification should be considered an NLRA violation.

Briefs are due April 16, with response briefs due April 30. Any organization or business can weigh in by filing a proper legal brief, even if they have nothing to do with the case that is being reconsidered.

The Board seems to think that the ALJ’s decision stinks, and the Board wants to reconsider the ruling, taking into account all points of view. With a soon-to-be-Republican majority Board (as of today, it’s 2-2 and the 3rd R is waiting to be confirmed), it is reasonable to expect that the ALJ’s ruling will be grounded.

We’ll see, but we can expect the full Board to issue a decision later this summer on whether misclassification, by itself, is an automatic violation of federal labor law. This is one to watch. Or, even better, you can participate by contacting your lawyer and filing a brief to weigh in.

[NOTE 9/2019: In Sept., 2019, the NLRB issued its decision and ruled that independent contractor misclassification is not an automatic violation of the National Labor Relations Act. Depending on the facts, it still may be a violationb, but misclassification alone is not — at least for now. Read more here.]

For more information on independent contractor issues and other labor and employment developments to watch in 2018, join me in Los Angeles on Feb. 27 or Cincinnati on March 28 for the 2018 BakerHostetler Master Class on Labor Relations and Employment Law: A Time for Change. Attendance is complimentary, but advance registration is required. Please email me if you plan to attend,, and list my name in your RSVP so I can be sure to look for you.

© 2018 Todd Lebowitz, posted on, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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