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NLRB Office of General Counsel Finds Misclassification of Truck Drivers is a Violation of the National Labor Relations Act

The National Labor Relations Board (NLRB) Office of General Counsel recently issued an Advice Memorandum regarding an alleged violation of Section 8(a)(1) of the National Labor Relations Act (NLRA) concerning an Employer’s misclassification of employees as independent contractors.  See Pacific 9 Transportation, Inc. Case 21-CA-150875.

The Employer, Pacific 9 Transportation, Inc. operated a trucking company that attempted to characterize their truck drivers as “independent contractors” through the execution of an Employment Agreement recognizing the same.  The Employer, however, maintained significant control over the hours and working conditions of the Employees.  The Employer also advised it drivers that they were not allowed to join a Union as a result of their independent contractor status.  In 2012, a Union began an organizing campaign among the drivers.  In April 2015, the Union filed a charge against the Employer alleging that the Employer’s misclassification of its drivers was a violation of Section 8(a)(1) of the NLRA.   Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act.

The Office of General Counsel concluded that that the Employer’s drivers were statutory employees and not independent contractors. It further concluded that when the Employer told its drivers that they were independent contractors and had no right to form a union but treated them as employees in virtually every respect, the Employer’s 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).

Many Trucking companies will attempt to classify their drivers as independent contractors, however, if the Employer maintains control over a driver’s hours and working conditions it’s very possible that the drivers may legally be Employees.  This could have significant repercussions in accident cases where a driver may attempt to collect workers’ compensation and unemployment compensation.

If you were hurt in a trucking accident and your Employer is refusing to accept workers’ compensation or unemployment compensation liability you should speak with an experienced Pennsylvania labor and employment attorney.

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