OOIDA weighs in on worker classification to National Labor Relations Board

While acknowledging that there are many truck drivers who are misclassified as owner-operators, OOIDA told the National Labor Relations Board that such proposals as the ABC Test disregard the success of those who are truly independent.

In an amicus brief to the National Labor Relations Board field on Thursday, Feb. 10, the Owner-Operator Independent Drivers Association said that classification should be based upon the actual experience between a business and the worker rather than “theoretical interpretations.”

The National Labor Relations Board is reconsidering its Trump-era legal test for determining whether a worker is an employee or an independent contractor. About 20 organizations, including OOIDA, filed briefs last week. In addition to trucking, the issue of worker classification also is of great interest to gig economy workers and freelance journalists.

“OOIDA is aware of, and sympathetic to, the plight of truck drivers who are mistreated by motor carriers,” the Association wrote in its amicus brief. “This most often occurs when a motor carrier labels its drivers as independent contractors but imposes onerous demands on them and exercises such control over them that the drivers cannot be considered to be managing their businesses.”

Finding the balance

OOIDA said there needs to be protections for those drivers, but the policies must also allow true independent owner-operators to remain in business. The ABC Test, which was the basis for California’s Assembly Bill 5, could threaten the owner-operator model, which allows a truck driver to be leased to a carrier while still running his or her own business.

“Instead of enforcing existing traditional classification standards and other legal remedies that would support owner-operators’ rights, some policymakers have sought to remedy these drivers’ poor working conditions by establishing new categorical classification rules that threaten to abolish the owner-operator business model itself,” OOIDA wrote.

In December, the National Relations Labor Board invited public briefing for interested parties to weigh in on whether the board should overrule a 2019 decision that made it easier for companies to prove that their workers are independent contractors.

The board, historically, used a traditional common law agency test to determine a worker’s classification. In 2014, the National Relations Labor Board updated the test to where only actual entrepreneurial opportunities factored into determining a worker’s status. In 2019, under President Donald Trump, the board returned to the longstanding use of the traditional common law test.

Under President Joe Biden, the board is now considering whether to maintain the Trump-era ruling, return to the 2014 standard or come up with a new test.

OOIDA said a mix of both tests is likely the correct approach.

“OOIDA appreciates the use of both the common law and entrepreneurial opportunity test to determine whether a worker is an employee or independent contractor,” the Association wrote. “Each test offers wide discretion to allow for the proper classification of truck drivers. In some instances, the entrepreneurial opportunity inquiry, alone, can be an appropriate classification analysis and may be informed by the common law factors where appropriate.

“But a well-defined and disciplined analysis of the common law factors, particularly the control factor, should also be used to identify those instances where the driver might receive enough compensation to stay in business but the actions of their motor carriers constructively deprive them of their discretion to run their business. Such business arrangements have no resemblance to the traditional owner-operator model.”

OOIDA said that the board should modify one or both decisions to find the correct balance.

“The entrepreneurial opportunity test should also be recognized as a potential basis, alone, upon which to make a classification decision,” OOIDA wrote. “But it should not be used in a vacuum when the strong presence of any of the traditional common law factors, such as control, demand attention. Finally, classification decisions should be based not upon theoretical interpretations of a contract, but on the actual and typical experience between a business and the workers being classified.” LL