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ARTICLE · 03 OCTOBER 2016

NLRB Releases Advice Memorandum Affirming Misclassification Constitutes Unfair Labor Practice

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At the end of August, the NLRB released an advice memorandum concluding that a group of drivers who worked for a company called Pacific 9 Transportation were misclassified as independent contractors.

United StatesEmployment and HR
Alexandra Hemenway
Alexandra Hemenway
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At the end August, the National Labor Relations Board released an advice memorandum, originally drafted in December 2015, concluding that a group of drivers who worked for a drayage company called Pacific 9 Transportation were misclassified as independent contractors and that this misclassification constituted a violation of the National Labor Relations Act. This advice memorandum comes on the heels of a handful of Board decisions, which have reached similar conclusions following the Board's new and expansive definition of who constitutes a statutory employee under the Act, in FedEx Home Delivery & Teamsters, Local 671. 361 NLRB No. 55 (2014).

The protections of the National Labor Relations Act only apply to individuals who are defined as statutory employees pursuant to Section 2(3) of the Act. According to this Section, independent contractors are expressly excluded from this definition. In September 2014, the Board departed from longstanding precedent and concluded

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