11 - Some Problems With NLRA Coverage

Summary

While many chapters in this volume address the substance of labor law, this section goes to a more fundamental question: Who should labor law cover? This is increasingly a question that enterprises are answering for themselves, skirting the law by characterizing themselves or their workers as exempt from NLRA coverage. In recent decades, employers have characterized increasing numbers of workers as “independent contractors,” a status that labor and employment laws do not cover. Also, many employers are engaging in arrangements with other entities – using either “temp” agencies or franchising relationships – designed to put the employer outside the scope of employment laws. In such situations, the “joint employer” rules designed to protect employees have proven inadequate. In both these areas, employers are taking advantage of loopholes and ambiguities in the legal doctrines to avoid responsibilities toward workers. This chapter addresses the law, and problematic reality, of independent contractor rules and joint employment.