Recently the National Labor Relations Board invited interested parties and amici to submit briefs in Velox Express, Inc. (15-CA-184006) to address under what circumstances, if any, the Board should deem an employer’s misclassifying statutory employees as independent contractors constitutes a violation of Section 8(a)(1) of the National Labor Relations Act (“the Act”). Briefs from parties and interested amici must be submitted on or before April 16, 2018.

In Velox Express, the ALJ found, providing virtually no analysis, that the employer’s misclassification of the Charging Party as an independent contractor constituted an independent violation of Section 8(a)(1) of the Act. This is a novel finding, and it was urged under an initiative pursued by former NLRB General Counsel Richard Griffin. The employer has appealed this finding to the Board, where it constitutes a case of first impression. If such a theory is accepted by the Board, and, ultimately by a Court if challenged on appeal, it could have significant consequences on the legal obligations and exposure of employers. Most obviously, the Board would have the power to order companies not to misclassify workers and obtain enforcement of such an order by a federal court, and to impose make whole remedies where appropriate.

The invitation suggests that the current Board will carefully consider whether the mere misclassification of employees constitutes a violation of the Act and is therefore subject to Board remedies. At least for now, however, one administrative law judge has accepted this novel theory (albeit with no explanation as to why).

We will continue to monitor developments in this case and update our blog on this topic. Companies who are concerned about the potential for misclassifying a worker being deemed to be a violation of the Act should seriously consider submitting amicus briefs either individually or through their trade associations.