Just before Christmas Non-Profit Quarterly called attention to a situation of some concern. Recently the National Labor Relations Board (NLRB) overturned an administrative law judge’s ruling and determined that employees were not protected when they advocated for non-employees.
In this particular case, it was employees of Amnesty International signing a petition supporting paying unpaid interns who were determined to lack protections. However, as the article points out, this ruling would be equally applicable to other categorized as non-employees.
Molly Lee Kaban, an attorney with Harrison Bridgett in San Francisco, who observes that “other types of nonemployees, such as gig workers and other independent contractors, will not be able to rely on support from employees within an organization to advocate on their behalf. Uber employees, for example, can potentially be disciplined or terminated for advocating on behalf of nonemployee drivers who want to be classified as employees. This could lessen the pressure on employers to make changes.”
In the non-profit arts this might translate to a lack of protection for orchestra musicians who were advocating for better pay for substitute musicians who were classified as independent contractors. Similar to the Amnesty International case, employees of an arts organization advocating that interns be paid could likewise run into problems with their employers. Obviously, labor law is not my area of expertise. There may be other rules and contract agreements that would forestall concerns about reprisals.
The are shades of gray and nuance to the rules. The NLRB’s basis for overturning the administrative law judge’s decision was based on the board’s interpretation of Amnesty International executive director’s comments as expressions of concern where the judge’s view was there were implications of reprisals.
Even if independent contractors do have more of a basis for being considered employees because they are paid, this ruling undermines the effort to eliminate the use of unpaid interns in both the for- and non-profit world.
As the National Law Review article on the case notes, trends are indicating potential barriers to graduate students, among others, efforts to unionize as well:
The NLRB has been signaling a hesitancy to impose obligations on employers outside the traditional employment context. It has proposed exempting paid undergraduate and graduate students from the NLRA, for example. Over the last several years, as employers are forced by the low employment rate to increase their use of nonemployees, unions have increased their efforts to expand the NLRA’s reach by organizing non-traditional workers, including temporary campaign workers and graduate students.