Press Releases
02/15/2022
Attorney General Tong Supports Adoption by the National Labor Relations Board of Stronger Standards for Protecting Workers from Misclassification
(Hartford, CT) – Attorney General William Tong today joined a coalition of 15 attorneys general in encouraging the National Labor Relations Board (NLRB) to strengthen the standard for protecting workers from misclassification by their employers as independent contractors — a designation that can deprive workers of wages earned, core workplace benefits, and the ability to organize.
In an amicus brief filed with the NLRB today, the coalition urges the board to abandon its existing, Trump-era test for deciding whether a worker is an employee protected by federal labor laws, safeguarding the right to organize and collectively bargain or alternatively is an independent contractor not covered by such legal protections. Workers who are misclassified as independent contractors lose the protections of key laws including minimum wage and overtime standards, employer share payments of social security tax, workplace safety requirements and the right to organize unions.
“Misclassification deprives workers of critical protections and benefits, and inappropriately enables employers to avoid contributing to critical social safety nets we all rely on. The NRLB must adopt clear, strong standards to prevent this abuse and exploitation,” Attorney General Tong said.
The brief urges the NLRB to adopt a standard “that extends even greater protections” against worker misclassification, is less vague and subject to exploitation than the current test. The strengthened standard is based on, and remains rooted in the NLRB’s longstanding precedent.
In 2019, the NLRB adopted a standard that allowed employers to classify workers as independent contractors if they can demonstrate, on balance, that the workers appear to have access to “entrepreneurial opportunity” similar to that of running an independent business.
The NLRB’s 2019 decision set aside a prior, more stringent test for classifying workers as independent contractors. That prior standard held that while multiple factors must be considered, a significant factor in any worker classification analysis was the extent to which an employer controls an individual’s work.
Today’s amicus brief argues for a return to the previous standard for even stronger safeguards.
The brief notes that workers who are misclassified as independent contractors can suffer a host of disadvantages – including substandard wages, denial of workplace safety protections and the right to seek better working conditions by organizing and collectively bargaining. Misclassification of workers is taking place at “disproportionately high” rates in such rapidly growing industries as the app-based economy, as well as in industries with large numbers of low-wage and vulnerable workers such as janitorial services, trucking and transportation, retail, hospitality, home care and construction.
In addition, “billions” of dollars in state revenues are lost to misclassification, the brief contends, leaving states to divert already limited resources and cut spending in other important areas.
“When employers misclassify workers, they shirk their responsibilities to fund vital social insurance programs administered by state and local governments,” the brief notes, “and the public pays the price.”
Attorney General Tong is joined by the attorneys general of New Jersey, Pennsylvania, Colorado, Delaware, the District of Columbia, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New York, Oregon, Rhode Island, and Vermont.
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