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Law Alert: ALJ Finds Misclassifying Independent Contractor Drivers Violates the NLRA

by Gregory M. Feary, A. Jack Finklea, James H. Hanson, Donald J. Vogel

September 27, 2017


ALJ Finds Misclassifying Independent Contractor Drivers Violates the NLRA

Consistent with the position taken by the current General Counsel of the National Labor Relations Board, an Administrative Law Judge from the Board on Monday issued a decision finding that a courier company violated the National Labor Relations Act by, among other things, merely classifying its drivers as independent contractors.  The ALJ first determined that local courier drivers were under the control of the courier company to such an extent that an employment relationship existed, then held that the misclassification violated the Act. No ruling was made that the courier company knew or should have known that its classification of the driver was improper from the outset or that there was intent to misclassify.

The ALJ’s decision is significant because it finds the putative employer to be guilty of an unfair labor practice for merely misclassifying the drivers as independent contractors.  Whether the ALJ’s decision will stand remains to be seen. We anticipate that the ALJ’s decision will be appealed to the full Board, which has just recently reached a full five-member complement controlled by a Republican majority. Moreover, the term of the current General Counsel ends this November, and a management-side attorney has been nominated as the next General Counsel.  The current General Counsel’s overly-aggressive approach to prosecuting misclassification cases may therefore be short-lived, either because the newly constituted Board determines otherwise or the new General Counsel decides to no longer prosecute those charges. 

If you have any questions on this ALJ decision or its potential effects, please contact Jim Hanson, Greg Feary, Jack Finklea or Don Vogel.


Scopelitis Transportation Law Alerts are intended as a report to our clients and friends on legal developments affecting the transportation industry. The published material does not constitute an exhaustive legal study and should not be regarded or relied upon as individual legal advice or opinion.

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