U.S. Court of Appeals for the D.C. Circuit

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D.C. Circuit unanimously rejects NLRB “independent contractor” misclassification decision

March 03, 2017

In a unanimous decision, the D.C. Circuit held that the FedEx drivers in question are independent contractors, exempt from the NLRA. In so holding, the opinion also concluded that the NLRB receives no deference in defining who constitutes an employee, as that question is rooted in the common law, an area in which the NLRB has no special expertise.

U.S. Chamber files amicus brief urging reversal

August 17, 2015

In its coalition brief, the U.S. Chamber asked the U.S. Court of Appeals for the D.C. Circuit to reverse a determination by the NLRB that, under Section 2(3) of the NLRA, truck drivers retained by the defendant in Connecticut were employees rather than independent contractors.

The Chamber’s brief argued that this case is indistinguishable from a 2009 D.C. Circuit decision involving the same defendant, which held that similarly situated truck drivers were “independent contractors.” The Chamber’s brief also criticized the NLRB’s apparent position that independent contractor arrangements are a disfavored “loophole” to the NLRA. According to the brief, the NLRB’s hostility to independent contracting arrangements is incompatible with the text and intent of the NLRA and ignores the many benefits that independent contractor arrangements provide for contractors and contracting businesses alike.

This brief was filed jointly with the American Trucking Associations and National Association of Manufacturers.

Michael J. Gray and E. Michael Rossman of Jones Day served as counsel for the amici with the U.S. Chamber of Commerce.

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