In recent months, the NLRB* has decided to crack down on some fairly typical and widespread employer policies which, on their face, have hardly seemed suspect and some of which most lawyers, including this one, have advised their clients to have in place. The NLRB has asserted that the following practices may interfere with an employee’s right to engage in protected activity under the NLRA:
- statements that employment is “at will”
- requests that employees refrain from discussing on-going investigations of employee misconduct
- policies that prohibit employees’ use of social media to criticize the employer
Without delving into the merits, or lack thereof, of such assertions, it would seem wise for companies to add language to these types of written policies to the effect that such policy “does not and is not intended to undermine or interefere with an employee’s right to engage in protected concerted activity under the NLRA.”
(*The National Labor Relations Board (“NLRB”) is responsible for enforcing the National Labor Relations Act (“NLRA”), a set of federal labor laws which apply to most employers whose businesses impact interstate commerce.)
It’s been several years since Massachusetts enacted the country’s most restrictive standards for classifying someone as an independent contractor, and yet frustration still arises any time I try to counsel clients on compliance. Many assumed that the law would quickly be “corrected” or, at least, interpreted in such a way as to permit the continued use of independent contractors. By issuing various advisories and interpretations, the Attorney General’s Office and the courts have squashed those assumptions. And, to date, despite periodic flurries of activity, the Legislature has not seen fit to change the law to bring it back into line with the 49 other states and the needs of the business and freelance communities.
There is ample reason for the “anti-independent contractor” moniker attached to the Massachusetts law. The law identifies three criteria for properly classifying someone as an independent contractor: (1) freedom from control; (2) unique skills; and, (3) outside the expertise of the business. It is this third requirement that gives fits. Short of the plumber that your company hires to fix the bathrooms, most people you hire to help your business run more smoothly, efficiently or completely, will be by definition, people that are providing services that your company is in the business of providing. So, for example, if you are a web-site designer and need someone to provide some technical expertise for a particular functionality that you want to add to the site, that person cannot properly be treated as an independent contractor. Even if this is a one-shot, 10 hour assignment, technically the person must be brought on board as an employee.
I pride myself on working with companies to ensure legal compliance in the most practical, effective and cost-conscious manner. Imagine that web-site designer’s reaction when I try to explain that Massachusetts law will not consider that consultant to be an independent contractor. That being said, companies faced with this issue need to assess their business needs and the penalties for noncompliance before blindly waiving the white flag. Creativity in this area may be severely constrained but it is not dead.