NLRB Issues Employer-Friendly Decisions Limiting Protections for Employee Complaints and Broadening the Definition of an Independent Contractor

By: Gabrielle I. Weiss 

The National Labor Relations Board (“NLRB”) recently issued two decisions that give companies greater flexibility to discipline employees and classify workers as independent contractors. Alstate Maintenance, LLC, 367 NLRB 68 (2019); SuperShuttle DFW, Inc., 367 NLRB 75 (2019).

In Alstate, the Board rejected a standard that protected broad statements to management in front of colleagues, making it more difficult for employees to successfully claim comments are protected by the National Labor Relations Act (“NLRA”).  Now, an employee’s statement is not protected unless the employee brings a truly group complaint or attempts to start group action for mutual aid or protection.  The Board rejected the argument that the comment, “we did a similar job a year prior and we didn’t receive a tip for it” was a group complaint simply because it was made in front of coworkers and used the plural pronoun “we.”  Rather, because the employer did not control tips, the comment could not be considered as made to management for the workers’ mutual aid or protection.

In SuperShuttle, the NLRB returned to its long-standing broad definition of an independent contractor. The Board reaffirmed a traditional common-law agency test, which focuses on a company’s ability to control a worker’s daily tasks.  Going forward, the Board will also examine the entrepreneurial opportunity a position affords a worker as one aspect of determining his or her employment status.  The ruling may make it more difficult for workers to unionize because only employees are covered by the NLRA.

Both decisions indicate that the NLRB may continue to relax restrictions on American businesses, including a company’s ability to discipline its employees and classify its workers as it chooses.  Employers should be mindful to distinguish between individual complaints, even if made in a group setting, which are not protected, and group actions concerning terms and conditions of employment, which cannot be restricted.  Additionally, if a worker is classified as an independent contractor, companies should maximize the workers’ ability to create their own financial opportunities and avoid exercising control over their daily tasks.

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