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Misclassifying Employees as Independent Contractors Under the NLRA
By: Eric Turner

Merely misclassifying employees as independent contractors, by itself, does not violate the National Labor Relations Act, according to a new ruling by the National Labor Relations Board.

The issue in this case arose after a logistics company fired a driver after she complained about being misclassified as an independent contractor. The Board agreed that the act of firing the driver for complaining violated the NLRA, but disagreed that the initial act of misclassification itself violated federal law for interfering with workers’ rights to organize. The Board determined that the act of telling workers they are independent contractors is not considered a threat of reprisal unless there is more. For example, the Board has found in other cases that an employer violates the NLRA if it expressly prohibits workers from engaging in otherwise protected activities because they are independent contractors.

The Board agreed with employer advocates who argued that if misclassification alone violates the NLRA, then it would significantly curtail the use of independent contractors and penalize employers for honest mistakes. The Board recognized that whether a worker is legally considered an employee or an independent contractor is not always clear cut and depends on a variety of factors.

Labor law violations are one less thing for employers to worry about when classifying workers as independent contractors. However, misclassification still poses many other concerns for employers, such as tax law issues, workers’ compensation issues, employee benefit issues, and numerous wage-and-hour law issues.

Arbitrate or litigate?
By: Eric Turner

The validity of arbitration agreements continues to be the subject of litigation in Kansas and Missouri. The U.S. Supreme Court’s decision to uphold class action waivers in arbitration agreements between employers and employees is one of many other issues raised in recent employment arbitration cases.

In October, a federal court in Kansas considered whether an enforceable arbitration agreement existed when the employee didn’t sign the arbitration agreement. In Kansas, an employee continuing to work after receiving notice of an employer’s arbitration policy is generally considered the same as an employee who has accepted the terms of the arbitration policy. In the most recent case, the employer sent multiple emails to the employee’s work email informing her of her right to opt out of arbitration. The employee didn’t deny receiving the emails and didn’t opt out of the agreement. The court initially noted that, if accepted, the agreement would be valid because it required both the employer and employee to arbitrate any disputes. In contrast, an agreement that requires the employee to arbitrate but makes arbitration optional for the employer isn’t enforceable. The key issue in this case was whether an employee failing to opt out may be deemed to have accepted mandatory arbitration. The court found that even if the employee didn’t read any of the emails, the employer provided adequate notice, and the employee had a meaningful opportunity to reject the offer of arbitration. Thus, by failing to opt out, the employee bound herself to arbitrate her discrimination and retaliation      Continue Reading...


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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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