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NLRB Hands IC Victory to Menard’s

A National Labor Relations Board administrative judge rebuffed an NLRB regional director’s attempt to deny independent contractor status to Menards’ delivery drivers.

The initial action was originally brought in August 2016 by the Office & Professional Employees International Union, alleging that Menards violated federal labor by misclassifying the drivers as owner-operators instead of employees.

Menards sells and delivers home improvement merchandise from more than 300 stores throughout the United States. Its delivery services are supplied by contracting with independent drivers and small fleets. Menards arranges the delivery and handles the payment from the customer.

The judge found that the drivers and small fleet owners had control over the work; were involved in a distinct business; supplied the instrumentalities of their work; could terminate the contracts on short notice; were paid by the job; believed their relationships were those of independent contractors; and had meaningful opportunity to provide their services to other companies.

“The ruling in this decision is a win for the IC model which has been continuously under fire by unions, and state and federal agencies attempting to undermine the long‑established business model” say attorneys Matthew Selby and Richard Plewacki of the law firm of Benesch Friedlander Coplan & Aronoff LLP.

The decision took into account several facts and factors that are generally common to truckers providing hauling services provided by owner-operators, they note.

“The analysis by the NLRB administrative judge provides a road map for others to compare against their IC agreements and more importantly, their operational actions,” Selby and Plewacki say.

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