Further crystalizing the Board’s efforts to expand the definition of “employee” under the NLRA, the Board recently reversed an ALJ’s decision, holding that canvassers for a non-profit organization were employees, not independent contractors. In Sisters Camelot, 363 NLRB No. 13 (Sep. 25, 2015), a canvasser filed a charge alleging that he was terminated for engaging in protected concerted activities during an organizing drive by the Industrial Workers of the World (IWW). The ALJ initially dismissed the Complaint, holding that the canvassers – who went door-to-door collecting donations for a non-profit organization without any direct supervision – were independent contracts, not employees.
In reversing the ALJ, the Board applied the 11-factor independent contract test laid out in recent cases, and held that, on balance, ten of the eleven factors favored employee status. Even though the canvassers were not required to report for work on any specific day, were not subject to in-person supervision, were able to work for other organizations, could quit or go inactive for any periods of time, and understood themselves to be independent contractors, the Board concluded overwhelmingly that the canvassers were employees. The Board held:
Critically, when the canvassers work for the Respondent, they do so at times and locations determined by the Respondent. Their compensation is nonnegotiable and strictly limited by the Respondent’s time and location restrictions. Canvassers must generally use the Respondent’s tools and instrumentalities, including materials and transportation. They have no proprietary interest in any part of the canvassing operations, including their raps. They must keep accurate and detailed records as part of the Respondent’s close scrutiny of their activities. If they do not comply with the Respondent’s directives, they may be subject to discipline. Canvassers are also well integrated into the Respondent’s organization and identify themselves as part of it. The Respondent provides training, and canvassers need not have any specialized education or prior experience. While the Respondent conducts other fundraising activities beyond neighborhood canvassing, it could not fulfill its charitable mission without the canvassers, who procure most of its operating funds. Finally, there is no evidence showing that the canvassers render services as part of an independent business.
Having reversed the ALJ on the issue of employee status, the Board then affirmed his contingent holding that the employer had violated the Act by its termination of the individual worker.
More resources and commentary:
“NLRB Calls Non-Profit Canvassers Employees, Not Contractors” – Law360 ($) [http://www.law360.com/articles/707918/nlrb-calls-nonprofit-canvassers-employees-not-contractors]
- “NLRB Not-For-Profit Canvassers Are Not Independent Contractors” – National Law Review [http://www.natlawreview.com/article/nlrb-not-profit-canvassers-are-not-independent-contractors]
- “NLRB Rules Union Canvasser Fired Illegally By Sisters’ Camelot, Orders Back Pay, Reinstatement” – IWW website [http://www.iww.org/content/nlrb-rules-union-canvasser-fired-illegally-sisters%E2%80%99-camelot-orders-back-pay-reinstatement]