Academic journal article Harvard Law Review

Employment Law - National Labor Relations Act - NLRB Classifies Canvassers as Employees, Not Independent Contractors

Academic journal article Harvard Law Review

Employment Law - National Labor Relations Act - NLRB Classifies Canvassers as Employees, Not Independent Contractors

Article excerpt

EMPLOYMENT LAW--NATIONAL LABOR RELATIONS ACT--NLRB CLASSIFIES CANVASSERS AS EMPLOYEES, NOT INDEPENDENT CONTRACTORS.--Sisters' Camelot, 363 N.L.R.B. No. 13 (Sept. 25, 2015).

What it means to "work" is changing. Many have eschewed the traditional nine-to-five job for more flexible, often one-time "gigs": delivering groceries, fixing a sink, driving a stranger to the airport. Supported by online intermediaries such as Uber and Task Rabbit, this growing gig economy (1) offers greater freedom for workers and businesses alike. But at the same time, it has raised questions about the existing categories of employment law. Already, disputes have ignited over whether gig workers are employees or merely independent contractors under the law. (2) Traditionally, one of the most crucial factors indicating the existence of an employment relationship has been the worker's loss of autonomy. (3) The challenge in the gig economy--where everyone gets to "be their own boss" (4)--is to determine who, if anyone, still counts as an employee under this test. Recently, in Sisters ' Camelot, (5) the National Labor Relations Board did just that, finding that door-to-door canvassers with flexible work schedules were employees within the meaning of the National Labor Relations Act. (6) The Board concluded that the canvassers--while free to choose when and how much to work--still faced many of the same constraints as traditional employees and were therefore entitled to the same protections. (7) The Board's decision demonstrates how existing legal categories can and do incorporate nontraditional workers. Flexible or not, many relationships in the gig economy are still shaped by the very power asymmetries that define an employment relationship--and should be recognized as such. Sisters' Camelot is a nonprofit organization in Minnesota that distributes food to low-income individuals. (8) It funds its operations almost entirely through donations collected by door-to-door canvassers, who operate on a flexible schedule and can choose whether to work on any given day. (9) Those who do decide to work must show up at the Camelot facility at a particular time to be transported to their designated canvassing area. (10) Canvassers can solicit donations only within their assigned area, and only for Camelot--they are prohibited from soliciting for other organizations at the same time, and can be disciplined for doing so. (11) They are also required to keep detailed records on each house they visit. (12) At the end of their shift, the canvassers deliver their collected donations and are transported back to the facility. (13) Each canvasser receives a nonnegotiable commission based on individual donations collected. (14)

Christopher Allison was one of these canvassers. In 2013, Camelot learned that Allison was involved in efforts to organize a canvassers' union. (15) He was fired. (16) His fellow canvassers were warned that, despite their efforts, they could not "force [Camelot] into the role of bosses." (17) The canvassers filed a complaint with the Board, alleging violations of their right to organize under the National Labor Relations Act. (18) An essential premise of their argument was that they were employees within the meaning of the Act and entitled, as such, to protection from unfair labor practices. (19)

An administrative law judge dismissed their complaint, (20) ruling that the canvassers were independent contractors, not employees. (21) Crucial to this conclusion were the judge's findings that the canvassers were in control of their own schedules and lacked direct supervision. (22) The judge emphasized that the canvassers were free to make important choices: whether to show up for their shifts and, during their shifts, whether to "work ... or goof-off." (23) Under his analysis, these facts "strongly indicate[d] independent contractor status." (24)

On review, a three-member panel of the Board (25) reversed the judge's dismissal, finding that the canvassers were employees protected under the Act. …

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