NLRB Continues Battle to Allow Organizing of Gig Workers

Abstract

When it comes to union organizing, one of the first questions that need to be answered is, “Who is being organized?” Frequently, that question involves names and job titles. However, the answer goes deeper than those types of facts. A specific legal question also arises: “Is it employees that are being organized?” Supervisors, for example, cannot be organized for union representation purposes. As relevant to the past five years or so, independent contractors also cannot be organized because they are not “employees,” which is the only category of worker organizable under the National Labor Relations Act. Not surprisingly, given the growth of the gig economy, the definitions of “employee” and “independent contractor” take on great significance when it comes to union organizing. A persuasive argument that a worker is an independent contractor, and not an employee, will make short work of an election petition.