In an Advice Memorandum released on August 26, 2016, the NLRB General Counsel determined that a Regional Office should issue a complaint alleging that an employer violated the National Labor Relations Act by misclassifying its drivers as independent contractors. According to the General Counsel’s Division of Advice, Pac-9 Transportation told its drivers that they were independent contractors and had no right to form a union, requiring them to execute a "lease and transportation agreement," but according to the advice memo, treated them as employees in virtually every respect. This misclassification of its drivers as independent contractors interfered with and restrained the drivers in their exercise of Section 7 rights in violation of Section 8(a)(1) of the Act. 8(a)(1) violation. After spending the bulk of its discussion on why the drivers were statutory employees, the advice memo turned to the Sec. 8(a)(1) violation. "Although the Board has never held that an employer’s misclassification of statutory employees as independent contractors in itself violates Section 8(a)(1), there are several lines of Board decisions that support such a finding," it said.
- First, the Board has held that an employer violates Section 8(a)(1) when its actions operate to chill or curtail future Section 7 activity of statutory employees.
- Second, employer statements to employees that engaging in Section 7 activity would be futile violate Section 8(a)(1).
- Third, the Board has also found misstatements of law to constitute an unlawful interference with employees’ Section 7 rights if the statement reasonably insinuates adverse consequences for engaging in Section 7 activity.
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