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NLRB Asserts Trucking Company Unfairly Misclassified Employees

       Intermodal Bridge Transport Inc. ("Intermodal") violated the National Labor Relations Act ("NLRA"), according to a regional director of the National Labor Relations Board ("NLRB"). Intermodal allegedly misclassified drivers as "independent contractors" instead of employees to avoid unionization.

            Under the NLRA, workers that fit the definition of an employee are allowed to unionize, but independent contractors are not.  The NLRA's definition of "employee" follows an old common law definition holding a person is an employee if the employer controls what and how work will be done. The definition is satisfied even if an employer charges an employee with a task, but gives them latitude to decide how it should be done. According to the Internal Revenue Service, "what matters is that you have the right to control the details of how the services are performed." Employees may collectively bargain, but the NLRA does not extend the right to bargain to certain types of workers, including agricultural workers, domestic servants, supervisors, and independent contractors. Therefore, the NLRB believes that Intermodal sought to avoid unionization and fool the workers by classifying them as "independent contractors."

The NLRB charged Intermodal with several unfair labor practices. Instead of asking Intermodal to switch the classification, the NLRB chose to call the misclassification itself a violation of federal labor law. For that reason, Intermodal was charged with a Section 8(a)(1) unfair labor practice, which prohibits employers from interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in the NLRA. An attorney for the plaintiffs said Intermodal's misclassification "is effectively telling workers that they cannot unionize, and thereby interfering, restraining and coercing them in the exercise of their very basic rights to choose whether or not to form a union." The NLRB added more evidence to its Section 8(a)(1) claim, describing how the employer interrogated drivers about support for a union, promised more work if drivers refrained from union organizational activities, threatened drivers over union activity, and threatened termination if drivers successfully unionized.

The legal team at SFMS has substantial experience litigating employment matters. If you have any questions regarding this subject or this posting, please contact Alec Berin (aberin@sfmslaw.com) or Chiharu Sekino (csekino@sfmslaw.com). We can also be reached toll-free at (866) 540-5505.

Shepherd, Finkelman, Miller & Shah, LLP, is a law firm with offices in California, Connecticut, Florida, New Jersey, New York, Pennsylvania and Wisconsin. SFMS is an active member of Integrated Advisory Group (www.iaginternational.org), which provides our firm with the ability to provide our clients with access to excellent legal and accounting resources throughout the globe. For more information about our firm, please visit us at www.sfmslaw.com.

Sources:

http://www.law360.com/employment/articles/787892/misclassification-flouts-drivers-union-rights-nlrb-claims

https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-3024/basicguide.pdf

http://www.lexology.com/library/detail.aspx?g=4b76377d-e235-4784-b6e6-6e8526d88605

https://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Employee-Common-Law-Employee

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