The National Labor Relations Board has held that companies do not violate the National Labor Relations Act solely by misclassifying employees as independent contractors. Bottom line: the decision to classify an individual as an independent contractor rather than an employee will not, by itself, subject an employer to liability under the National Labor Relations Act.

On March 1, reversing the Court of Appeals, the Arkansas Supreme Court ruled that a part-time grocery store security guard was an independent contractor, and not an employee, for purposes of Workers' Compensation.

The significance of this decision for newspaper publishers in Arkansas is that the primary factors relied upon by the Arkansas Supreme Court are usually present in the contract relationship between newspaper publishing companies and its independent contractor newspaper carriers.

Recently, a former newspaper carrier filed a wage claim with the North Carolina Department of Labor, claiming employee status at a daily newspaper in the state. The newspaper carrier filed with the state Department of Labor, rather than federal DOL, because the federal wage and hour law contains a complete exemption for newspaper carriers; the North Carolina wage and hour law does not.

Of course, the newspaper stated that the individual was an independent contractor, not an employee. As part of its investigation, the North Carolina Department of Labor asked the company to provide specific information, in order to determine whether there was an employer/employee relationship.

On Feb. 26, the NLRB vacated its recent ruling in the Hy-Brand Industrial Contractors case, which overruled the National Labor Relations Board's controversial Browning-Ferris decision.

This month's column reports on two National Labor Relations Board administrative law judge decisions involving the issue of whether someone is an employee or an independent contractor. In both cases, former NLRB General Counsel Richard Griffin had urged the ALJ to rule that merely classifying someone as an independent contractor is an independent violation of the National Labor Relations Act. This is legal adventurism in an attempt to make new law.

In one of the cases, the ALJ found independent contractor status and chose not to reach that novel issue. In the second case, the ALJ found employee status and agreed with the NLRB general counsel, finding that the misclassification of the individuals as independent contractors was a per se independent violation of the NLRA. With a new management majority sitting on the NLRB in Washington, let us hope that this legal adventurism will be reversed.

I also report on a new NLRB case involving an employer's texting and confidentiality rules, as well as a new court case addressing the ability to discover social media passwords in litigation.
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We have been writing for months about the never-ending saga of legislative attempts to remove from North Carolina law a provision in the workers' compensation law that presumes newspaper carriers are independent contractors. This presumption has been very valuable since it was passed almost two decades ago. Since that time, there has not been a single reported independent contractor versus employee case in the workers' comp arena in the state of North Carolina.

Fending off another attack by industry opponents in the Oct. 4 special session of the N.C. General Assembly, the North Carolina Press Association stopped an effort to presume all newspaper carriers in the state to be employees, subject carriers to state workers comp and unemployment insurance taxes, and create a new test for independent contractor status.

Far from the sky falling, North Carolina's legal advertising and independent contractor-newspaper carrier climate remains intact. The leadership of the North Carolina General Assembly acted responsibly, with encouragement from the North Carolina Press Association and many SNPA members, to leave N.C. law unchanged.

As previously reported, North Carolina newspapers have been fighting to maintain the tremendous advantage they have enjoyed in Workers' Compensation legislation for the last 20 years, in the form of a legislative presumption of independent contractor status for newspaper carriers.

At the very end of the legislative session on June 28, a modified version of H.B. 205 passed in both Houses. This bill would have removed the legislative presumption. Fortunately, on July 17, Governor Roy Cooper vetoed the new legislation.

On Monday, July 17, North Carolina Governor Roy Cooper vetoed legislation that would have removed the independent contractor presumption that the state's newspaper industry has enjoyed for the last 20 years. As previously reported, the presumption was removed on June 28 when a modified version of House Bill 205 passed in a midnight session of the Legislature.