Attorney General Bonta Urges National Labor Relations Board to Strengthen Protections for Workers Seeking to Organize

Thursday, February 10, 2022
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Joins coalition opposing Trump-era standard that erroneously labeled workers as independent contractors in order to prevent them from unionizing

OAKLAND – California Attorney General Rob Bonta today joined a coalition of 16 attorneys general in an amicus brief urging the National Labor Relations Board (NLRB) to strengthen protections for workers seeking to organize in a case currently before the board. Under the National Labor Relations Act, the NLRB determines which workers are considered employees and therefore entitled to form or join a union. In the amicus brief, the coalition urges the NLRB to reject the Trump-era standard that erroneously labeled workers as independent contractors in order to prevent them from unionizing.

“The right to organize is critical,” said Attorney General Bonta. “It’s because of unions that Americans today can enjoy eight-hour workdays, overtime, paid sick leave, workers’ compensation, and more. During this ongoing pandemic, workers are more vulnerable than ever and unions are a part of the solution. Workers deserve a national standard that doesn’t prevent them from having a chance to organize before they can even get started. It’s time for the National Labor Relations Board to reject the Trump-era employee classification standard.”

Prior to 2019, the NLRB relied on a range of factors to determine whether a group of workers seeking to organize were employees or independent contractors under the National Labor Relations Act. However, in 2019, the NLRB in SuperShuttle DFW, Inc. explicitly overruled the previous standard to instead center its determinations regarding employment classification on whether an individual has “significant entrepreneurial opportunity for gain or loss.” In doing so, the NLRB deemed more workers to be contractors and thus stripped them of the opportunity to organize, bargain collectively, and engage in other protected activities under the nation's labor laws. At a time when workers are increasingly vulnerable as a result of the ongoing COVID-19 pandemic, the right to organize is as important as ever and appreciation for that right — the work of labor unions — has reached its highest point since 1965. This is a recognition of the power of unions to increase wages, and provide a wide range of benefits and protections. For workers across the country, the right to organize is contingent on the standards established by NLRB.

In the amicus brief, the coalition asserts:

  • The NLRB should adopt a strong and clear standard that protects employees from misclassification consistent with the National Labor Relations Act’s purpose and precedent;
  • The SuperShuttle standard is too narrow to protect workers from misclassification and too amorphous to provide clarity to employers; and
  • The NLRB should look to the experiences of state enforcers for guidance in adopting a standard at least as protective as the previous standard.

In filing the amicus brief, Attorney General Bonta joins the attorneys general of New Jersey, Pennsylvania, Colorado, Connecticut, Delaware, the District of Columbia, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New York, Oregon, Rhode Island, and Vermont.

A copy of the amicus brief is available here.

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