SOS International LLC (21-CA-178096)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

DATE:

March 9, 2017

TO:

William B. Cowen, Regional Director

Region 21

FROM:

Barry J. Kearney, Associate General Counsel

Division of Advice

SUBJECT: SOS International LLC

Case 21-CA-178096

177-2414-0100-0000

177-2414-1100-0000

177-2414-2200-0000

177-2414-4400-0000

177-2414-6600-0000

177-2414-8800-0000

177-2484-5000-0000

177-2484-5033-0133

512-5006-5031-0000

512-5006-5050-0000

512-5006-5096-0000

512-5006-6767-0000

The Region submitted this case for advice as to whether the Employer has

violated Section 8(a)(1) by misclassifying immigration court interpreters as

independent contractors. We conclude, first, that the interpreters are employees of the

Employer under the Act, rather than independent contractors. We conclude, further,

that the Employer has violated Section 8(a)(1) by misclassifying the interpreters as

independent contractors because the misclassification operates to chill the

interpreters’ exercise of Section 7 activity.

FACTS

SOS International LLC (“SOSi” or the “Employer”) supplies interpreters to

immigration courts across the United States under a prime contract with the U.S.

Department of Justice Executive Office for Immigration Review (“EOIR”), which

administers the immigration court system. That contract (the “EOIR Contract”) is one

of many government contracts held by SOSi, which is a major government contractor

providing services in linguistics and other fields.

interpreters to

immigration courts across the United States under a prime contract with the U.S.

Department of Justice Executive Office for Immigration Review (“EOIR”), which

administers the immigration court system. That contract (the “EOIR Contract”) is one

of many government contracts held by SOSi, which is a major government contractor

providing services in linguistics and other fields.

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The evidentiary record primarily concerns SOSi interpreters residing in

southern California.1 These interpreters2 mainly work at hearing locations near their

homes, although some also travel to locations throughout the region or country.

Among the hearing locations in Southern California are two in downtown Los

Angeles: the Federal Building at 300 North Los Angeles Street, which houses a

detention center for aliens in custody, and an immigration court at 606 South Olive

Street. Approximately sixty-five SOSi interpreters work at South Olive Street, and

approximately thirty of these are Spanish-English interpreters.

At some hearing locations, EOIR keeps a staff of “in-house” interpreters, who

are federal employees but perform the same substantive work as SOSi interpreters.

A. Initial Recruitment of Interpreters

SOSi began providing interpreters to EOIR in late 2015 after winning the

EOIR Contract from Lionbridge, another government contractor. When SOSi won the

contract, it attempted to enlist Lionbridge’s interpreters, some of whom had worked in

the immigration courts for over a decade, with ostensibly nonnegotiable pay rates

lower than Lionbridge’s rates. Thereafter, these interpreters concertedly negotiated

higher rates for interpreters across California. The incumbent interpreters began

working for SOSi in the immigration courts at the concertedly-negotiated rates in

December 2015.

B. General Onboarding Practices

Pursuant to the EOIR Contract, SOSi interpreters must generally be U.S

y nonnegotiable pay rates

lower than Lionbridge’s rates. Thereafter, these interpreters concertedly negotiated

higher rates for interpreters across California. The incumbent interpreters began

working for SOSi in the immigration courts at the concertedly-negotiated rates in

December 2015.

B. General Onboarding Practices

Pursuant to the EOIR Contract, SOSi interpreters must generally be U.S.

citizens or lawful permanent residents; have one year of experience interpreting in a

judicial environment, or a relevant certification; be highly proficient in English and

foreign language vocabularies; know specialized vocabulary relevant to immigration

court proceedings; and be adept at simultaneous and consecutive modes of

interpretation,3 as well as sight translation.

1 The Region has gathered affidavits from at least fourteen California-based

interpreters who work or worked for SOSi. Additionally, some interpreters completed

more recent non-Board declarations, which we considered for the purpose of analyzing

the interpreters’ relationship with SOSi.

2 Unless otherwise noted, subsequent references to SOSi interpreters are to those

residing in southern California.

3 In consecutive interpretation, the interpreter utters interpreted statements during

pauses in a hearing participant’s speech, while simultaneous interpretation involves

uttering interpreted statements as the participant speaks.

lyzing

the interpreters’ relationship with SOSi.

2 Unless otherwise noted, subsequent references to SOSi interpreters are to those

residing in southern California.

3 In consecutive interpretation, the interpreter utters interpreted statements during

pauses in a hearing participant’s speech, while simultaneous interpretation involves

uttering interpreted statements as the participant speaks.

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To ascertain interpreter candidates’ qualifications, SOSi applies an evaluation

protocol pursuant to general requirements in the EOIR Contract.4 Initially,

candidates take a skills-screening test developed and administered by a SOSi

subcontractor. Otherwise-qualified candidates who pass the screening thereafter

receive training on EOIR-specific protocol, terminology, and language skills before

taking a test on these topics. SOSi assigns passing candidates to a first hearing and

thereafter evaluates the interpreters based on a recording of that hearing.

New interpreters must complete government background investigations and

forms, including an I-9 employment authorization form, a Declaration for Federal

Employment, and, sometimes, a loyalty oath. SOSi also requires interpreters to sign

an “Independent Contractor Agreement,” which incorporates numerous attachments

and exhibits (collectively, “ICA”).

C. Independent Contractor Agreements5

SOSi’s ICA lays out many parameters of an interpreter’s work. Pursuant to the

ICA, the interpreter is to interpret immigration court hearings on an as-needed basis

when requested by SOSi and able to do so. The interpreter cannot accept work falling

under the EOIR Contract from any other company without SOSi’s approval. Nor may

the interpreter assign any rights or obligations under the ICA.

The ICA requires SOSi to pay the interpreter $225 for a “half day,” i.e., up to

four hours of interpretation, and $425 for a “full day,” i.e., up to eight hours

sis

when requested by SOSi and able to do so. The interpreter cannot accept work falling

under the EOIR Contract from any other company without SOSi’s approval. Nor may

the interpreter assign any rights or obligations under the ICA.

The ICA requires SOSi to pay the interpreter $225 for a “half day,” i.e., up to

four hours of interpretation, and $425 for a “full day,” i.e., up to eight hours. The ICA

also notes a supplemental hourly rate for half days exceeding four hours, but does not

clearly indicate whether the hourly supplement or the full-day rate applies to

workdays longer than four hours but shorter than eight. Also, the ICA is silent as to

compensation for workdays exceeding eight hours.

For assignments involving non-local travel, SOSi and the interpreter will

negotiate travel cost reimbursement on a case-by-case basis. SOSi may cancel half or

full days of interpretation without payment if SOSi provides at least twenty-four

hours’ notice; it provides a half day’s payment otherwise. Also, SOSi will pay a 10%

premium fee for assignments issued two or fewer working days prior to the assigned

hearing.

4 Incumbent interpreters did not undergo SOSi’s initial testing and training process

since EOIR and SOSi generally presumed they were qualified.

5 The following summary is based on an incumbent interpreter’s ICA. More recent

ICAs may differ with respect to compensation, as described in sections further below.

the assigned

hearing.

4 Incumbent interpreters did not undergo SOSi’s initial testing and training process

since EOIR and SOSi generally presumed they were qualified.

5 The following summary is based on an incumbent interpreter’s ICA. More recent

ICAs may differ with respect to compensation, as described in sections further below.

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The interpreter has to arrive at hearings early and prepared to proceed. Unless

a hearing is adjourned for lunch, the interpreter must remain at the hearing until

released. If a hearing is adjourned until later in the day, the interpreter may be given

up to two hours for lunch. SOSi will not pay for lunch breaks unless adjournments

exceed two hours. Lunch breaks are not guaranteed.

The ICA also permits SOSi to deduct from the interpreter’s compensation the

amount of “[o]ne (1) time the hourly rate” as a penalty for performance problems,

including lateness, falling short of other requirements or standards, and failing to

gain access to a hearing location due to lateness or lack of proper credentials.

Notwithstanding penalties, the interpreter remains obligated to perform his or her

work satisfactorily. Failure to do so subjects the interpreter to termination.

The interpreter “shall conform to high professional standards of work and

business ethics.” In that regard, the interpreter must follow rules, policies, and

procedures embodied in documents authored by EOIR or SOSi. Documents stemming

from EOIR include the following: U.S. D.O.J. Code of Professional Responsibility for

Interpreters; U.S. D.O.J. Immigration Court Operating Guidelines for Contract

Interpreters; U.S. D.O.J. Confidentiality Agreement for Contractor Employees; EOIR

Court Interpreter Handbook; and Immigration Court Terminology List (for English-

Spanish).

The Code of Professional Responsibility enumerates professional standards

applicable to immigration court interpreters

nal Responsibility for

Interpreters; U.S. D.O.J. Immigration Court Operating Guidelines for Contract

Interpreters; U.S. D.O.J. Confidentiality Agreement for Contractor Employees; EOIR

Court Interpreter Handbook; and Immigration Court Terminology List (for English-

Spanish).

The Code of Professional Responsibility enumerates professional standards

applicable to immigration court interpreters. The standards concern accuracy and

completeness, representation of interpreter qualifications, impartiality and avoidance

of conflicts of interest, professional demeanor, confidentiality, limits of the

interpreter’s role, reporting concerns about inability to competently complete an

assignment, reporting ethical violations, and professional development.

The Immigration Court Operating Guidelines for Contract Interpreters

prescribe procedures for interpreters to follow starting before their arrival at an

assigned hearing location and continuing through the end of their day’s work. The

Guidelines cover matters such as checking in with court personnel, where to go and

when, and completing Certification of Interpretation (“COI”) forms, which are

described further below. The Guidelines also prohibit conduct such as speaking with

parties awaiting hearings, entering certain areas without court personnel escort,

using electronic devices without permission, and asking court personnel for future

interpreting assignments. Additionally, the Guidelines forbid soliciting employment

or handing out business cards and resumes during assignments.

The Confidentiality Agreement for Contractor Employees requires the

interpreter to agree that, among other things, the interpreter will not reveal, divulge,

or publicize matters dealt with under the EOIR Contract; disseminate information

obtained through their work; or remove documents without approval.

bid soliciting employment

or handing out business cards and resumes during assignments.

The Confidentiality Agreement for Contractor Employees requires the

interpreter to agree that, among other things, the interpreter will not reveal, divulge,

or publicize matters dealt with under the EOIR Contract; disseminate information

obtained through their work; or remove documents without approval.

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The EOIR Court Interpreter Handbook describes the immigration court

hearing process and the interpreter’s role therein; prescribes rules and standards

concerning conduct, etiquette, and manner of interpretation; and provides guidance

for handling a variety of contingencies during hearings. Examples of rules governing

the manner of interpretation are, “never correct erroneous facts posed by judge or

counsel in questions,” and “try to control . . . laughter” in the event of a humorous

response by a participant.

The Immigration Court Terminology List provides Spanish translations of

common technical terms related to immigration court proceedings.

In addition to the EOIR-authored documents, interpreters must follow SOSi’s

Code of Business Ethics and Conduct. The Code requires interpreters to abide by a

variety of laws; treat colleagues with dignity and respect at all times; protect

colleagues’ personal information; avoid personal conflicts of interest with SOSi; avoid

exchanges of gifts that would damage SOSi’s reputation, even if lawful; refrain from

using social media to discuss SOSi business; refrain from responding to press

inquiries; report misconduct to SOSi; cooperate with SOSi’s internal investigations of

alleged misconduct; and seek guidance from internal resources when questions or

concerns arise.6 The Code states that the Employer may discipline not only

individuals who violate the Code, but also those who deliberately fail to report

violations.

The ICA lays out additional, partly overlapping requirements for interpreters

isconduct to SOSi; cooperate with SOSi’s internal investigations of

alleged misconduct; and seek guidance from internal resources when questions or

concerns arise.6 The Code states that the Employer may discipline not only

individuals who violate the Code, but also those who deliberately fail to report

violations.

The ICA lays out additional, partly overlapping requirements for interpreters.

The interpreter must observe and follow applicable SOSi or U.S. Government site

rules, policies, and standards while at any SOSi or U.S. Government facility, or when

connected to a SOSi or Government computer network. The interpreter must

understand the immigration courts’ hearing process, terminology, and procedures.

Consistent with language in the EOIR Contract, interpreters must carry SOSi-

provided photo identification, government-issued photo identification, bilingual

conversion dictionaries, and an Immigration Court Terminology List for the

interpreter’s language of interpretation.7

Interpreters must also complete SOSi-provided COI forms. Each form is one-

and-a-half pages long, bears SOSi’s logo, and contains fields to record information

about an interpreter’s work on a particular day. Interpreters must record their

6 The Region is currently investigating allegations that some of the Code’s rules

violate Section 8(a)(1).

7 The EOIR-provided sample list, mentioned above, includes Spanish terms, but lists

for other languages exist as well.

fields to record information

about an interpreter’s work on a particular day. Interpreters must record their

6 The Region is currently investigating allegations that some of the Code’s rules

violate Section 8(a)(1).

7 The EOIR-provided sample list, mentioned above, includes Spanish terms, but lists

for other languages exist as well.

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names, the hearing location, starting times of hearings, the names of immigration

judges assigned to the hearings, and a signed certification that the interpretations

provided were accurate. The COI also includes fields for immigration court personnel

to record the start and end times of hearings and the interpreter’s lunch break, as

well as to note late arrivals by the interpreter or make open-ended comments.

Under the ICA, the interpreter “shall indemnify, defend and hold harmless the

Company from and against any and all claims, demands, lawsuits, liability, costs and

fees (including attorneys’ fees) threatened or incurred as a result of the [interpreter’s]

breach of or failure to perform his/her obligations under [the ICA].” However,

“[e]xcept as otherwise provided under [the ICA], neither party to [the ICA] shall be

liable to the other for indirect, special, incidental, or punitive damages in connection

with[] performance of any obligations under [the ICA.]”

Under a section titled “Independent Contractor,” the ICA states that “[t]he

[interpreter] is not an employee of [SOSi].”8 Also, “[t]he manner in which the

[interpreter’s] language interpretation and translation services are rendered shall be

within the [interpreter’s] sole control and discretion, provided the [w]ork is performed

in accordance with the [requirements summarized above].” Finally, SOSi will not

withhold taxes, provide any employee benefit plan, or make payments to

unemployment, disability, or workers’ compensation insurance on the interpreter’s

behalf

uage interpretation and translation services are rendered shall be

within the [interpreter’s] sole control and discretion, provided the [w]ork is performed

in accordance with the [requirements summarized above].” Finally, SOSi will not

withhold taxes, provide any employee benefit plan, or make payments to

unemployment, disability, or workers’ compensation insurance on the interpreter’s

behalf.

The ICA lasts for a specified term—October 31, 2015, to August 31, 2016—

subject to negotiated extension prior to termination. However, SOSi may terminate

the ICA at will without penalty.

D. Day-to-Day Operations

1. Advance Hearing Assignment Process

Interpreters generally obtain hearing assignments on a weekly or monthly

basis via emails with SOSi-employed coordinators, who physically work in Reston,

Virginia, and are the interpreters’ primary company contacts. To start the assignment

process, interpreters provide their coordinators with their availability during the

upcoming week(s) or month. Coordinators respond with a hearing schedule for that

time period.9 These scheduling emails include details about hearings, including,

8 In a separate section, the ICA states that it should not be construed to create any

form of employment relationship.

9 In addition, coordinators make last-minute assignments by phone or email on a

first-come, first-served basis.

aring schedule for that

time period.9 These scheduling emails include details about hearings, including,

8 In a separate section, the ICA states that it should not be construed to create any

form of employment relationship.

9 In addition, coordinators make last-minute assignments by phone or email on a

first-come, first-served basis.

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among other things, the location, date and time, language to be interpreted, judge,

and alien’s nationality, as well as whether the alien is in custody.

Hearing times fall within the immigration courts’ hours of operation, 8:00 a.m.

to 5:00 p.m., which are divided into a morning and an afternoon session. Immigration

judges generally conduct hearings every session except Wednesday afternoons. On a

given weekday, an interpreter may be assigned to a morning session, an afternoon

session, or both.

Interpreters usually accept all advance assignments that SOSi offers.

Although, under the ICA, interpreters may reject any assignment, SOSi actively

discourages rejections. Numerous interpreters have testified that, when they rejected

assignments, coordinators reprimanded them, rescinded accepted assignments, or

withheld assignments for time slots in which they expected to work.

Relatedly, interpreters encounter pressure to keep their schedules open for

assignments before receiving offers. Several interpreters reported that SOSi offered

them unusually few assignments for a week or two after they requested time off.

Pressuring interpreters to accept assignments is SOSi’s deliberate managerial

strategy. In a speakerphone conversation that an interpreter overheard, SOSi’s

Operations Manager stated that interpreters who reject assignments will not receive

priority for upcoming assignments. Another interpreter testified that, after she

rejected an assignment, her coordinator told her that he could not immediately

“reward” her rejection with another case

is SOSi’s deliberate managerial

strategy. In a speakerphone conversation that an interpreter overheard, SOSi’s

Operations Manager stated that interpreters who reject assignments will not receive

priority for upcoming assignments. Another interpreter testified that, after she

rejected an assignment, her coordinator told her that he could not immediately

“reward” her rejection with another case.

If an interpreter wishes to cancel an assignment, the interpreter must tell his

or her coordinator. Usually, rather than simply canceling, an interpreter will line up

another SOSi interpreter to attend the hearing pending SOSi’s approval. If SOSi

approves, the company later pays the substitute directly for completing the work.

Excepting such substitutions, interpreters are personally responsible for completing

assignments. They may neither subcontract assignments nor hire any assistants or

helpers.

If the immigration court cancels a scheduled hearing, the assigned interpreter’s

coordinator will generally communicate the cancellation to the interpreter.

When assignments require long-distance travel, SOSi books any necessary

flights and hotel accommodations without the interpreter’s input.

2. Interpreters’ Work Schedules

SOSi unilaterally decides which assignments to offer to which interpreters, and

gives preference to some interpreters over others. Many interpreters work for SOSi

four or five weekdays per week, consider SOSi work to be their “principal” or “full-

long-distance travel, SOSi books any necessary

flights and hotel accommodations without the interpreter’s input.

2. Interpreters’ Work Schedules

SOSi unilaterally decides which assignments to offer to which interpreters, and

gives preference to some interpreters over others. Many interpreters work for SOSi

four or five weekdays per week, consider SOSi work to be their “principal” or “full-

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time” job, and refrain from other interpretation work. Others occasionally engage in

other interpretation work, but generally prioritize assignments from SOSi.

A minority of interpreters rely even less on SOSi for work. One interpreter,

who runs a one-person interpretation business, testified that her decision to accept an

assignment from SOSi or another company will depend on which company contacts

her first.10 Another, former SOSi interpreter worked for other companies out of

necessity because SOSi only assigned him to five or six cases per month.

3. Interpreters’ Workdays

Consistent with EOIR policy, SOSi requires interpreters to wear professional

attire and SOSi-branded photo identification badges at hearing locations.11 The

badges bear SOSi’s logo and the phrase “Challenge Accepted,” which is SOSi’s slogan.

Interpreters wear the badges on lanyards that also bear SOSi’s name.

Interpreters must bring SOSi-provided COI forms to hearing locations. They

are also generally responsible for bringing notepads, writing utensils, and dictionaries

for their use during hearings.

Interpreters must arrive at hearing locations about one hour before their first

scheduled hearing. Upon arriving, interpreters pass through security screening and

then check in at the immigration court clerk’s office. Interpreters must thereafter

arrive at assigned hearing rooms early to set up the hearing room’s microphones,

headphones, related peripherals, and, sometimes, televideo sets.12 Interpreters may

not modify this EOIR-owned equipment

ne hour before their first

scheduled hearing. Upon arriving, interpreters pass through security screening and

then check in at the immigration court clerk’s office. Interpreters must thereafter

arrive at assigned hearing rooms early to set up the hearing room’s microphones,

headphones, related peripherals, and, sometimes, televideo sets.12 Interpreters may

not modify this EOIR-owned equipment. Nor may they bring their own chairs or use

electronic dictionaries or smartphone applications at hearings.

During hearings, interpreters must completely and accurately interpret the

proceedings. At various times, interpreters interpret consecutively or simultaneously,

depending on the judge’s preferences. Interpreters must continue tending to the

10 However, some months later, the same interpreter stated in a non-Board

declaration that she prioritized SOSi cases because she got the impression from her

coordinator that she would not be assigned cases unless she kept her schedule open

for SOSi.

11 In-house interpreters are permitted to dress more casually.

12 Assignments at detention facilities require televideo equipment because

immigration judges, and possibly others, participate remotely. The interpreter is

present at the detention facility with a detained alien, and must interpret through a

telephone system.

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technological equipment throughout hearings. On occasion, judges may ask

interpreters to complete tasks falling outside the EOIR Contract, such as reviewing

asylum applications. SOSi forbids interpreters from completing these tasks and

requires interpreters to decline the judges’ requests.

When hearings conclude, interpreters must obtain the presiding judge’s

signature on their COI forms

-

technological equipment throughout hearings. On occasion, judges may ask

interpreters to complete tasks falling outside the EOIR Contract, such as reviewing

asylum applications. SOSi forbids interpreters from completing these tasks and

requires interpreters to decline the judges’ requests.

When hearings conclude, interpreters must obtain the presiding judge’s

signature on their COI forms. Although, occasionally, SOSi assigns two interpreters

to a hearing to conduct a “relay” interpretation,13 SOSi instructs interpreters to have

the judge sign only a single COI because EOIR compensates SOSi for only one of the

two interpreters. However, both interpreters must later submit COI forms to SOSi.

Although interpreters receive advance assignments for only one hearing per

session, interpreters usually work through the end of the session even if the pre-

assigned hearing ends earlier. Whenever a hearing concludes mid-session, court

personnel assign the interpreter to another hearing. Interpreters must accept such

reassignments, and may not leave until released by court staff after providing the

staff with copies of completed COI forms.14 Interpreters later scan and submit COI

forms to SOSi for payment.

Hearing duration and mid-hearing breaks are determined by immigration

judges. Although the immigration courts officially close at 5:00 p.m., some judges will

allow hearings to continue past that time.

Generally, a lunch recess divides the immigration courts’ two daily sessions.

However, consistent with the ICA, SOSi interpreters are not guaranteed time for a

lunch break.

4. Compensation

SOSi generally pays interpreters via direct deposit within thirty days from its

receipt of completed COI forms. Until May 2016, SOSi paid incumbent interpreters

the full-day rate for single sessions that exceeded four hours

cess divides the immigration courts’ two daily sessions.

However, consistent with the ICA, SOSi interpreters are not guaranteed time for a

lunch break.

4. Compensation

SOSi generally pays interpreters via direct deposit within thirty days from its

receipt of completed COI forms. Until May 2016, SOSi paid incumbent interpreters

the full-day rate for single sessions that exceeded four hours. Now, these interpreters

13 Relay interpretation involves one interpreter interpreting between a rare language

(e.g., an indigenous South American language) and a common non-English language

(e.g., Spanish), and a second interpreter interpreting between the latter language and

English.

14 If a SOSi interpreter cannot accept reassignment due to an emergency or a

schedule conflict, the interpreter must contact his or her SOSi coordinator.

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instead receive supplemental payment by the hour.15 Interpreters have recently

reported that SOSi likewise provides additional pay for full days exceeding eight

hours.16

As indicated further above, incumbent interpreters’ rates are products of

concerted negotiations with SOSi. Though the negotiated rates still apply to

incumbent interpreters who continued working for SOSi after August 31, 2016—the

incumbent interpreters’ ICAs’ initial expiration date—interpreters have reported that

SOSi has recruited new interpreters whom it pays a less generous hourly rate

unilaterally set by SOSi.

The incumbent interpreters’ ICAs did not set rates for non-local travel

assignments, thereby implicitly leaving travel rates open for negotiation on a case-by-

case basis.17 However, while some who attempted to negotiate were successful, others

were either rebuffed or penalized by SOSi with fewer assignments.

5. Supervision and Discipline

SOSi and EOIR share supervisory and disciplinary authority over the

interpreters

CAs did not set rates for non-local travel

assignments, thereby implicitly leaving travel rates open for negotiation on a case-by-

case basis.17 However, while some who attempted to negotiate were successful, others

were either rebuffed or penalized by SOSi with fewer assignments.

5. Supervision and Discipline

SOSi and EOIR share supervisory and disciplinary authority over the

interpreters. EOIR enforces its rules, policies, and standards through the ability to

“disqualify” interpreters for infractions. “Disqualification” is a temporary or

permanent bar from interpreting for a particular case, judge, or immigration court, or

for the entire immigration court system, with respect to one or more interpretation

languages.18

Disqualification generally begins with a complaint by an immigration judge,

court staff member, or attorney asserting that an interpreter has performed

inadequately, behaved unprofessionally, or violated rules such as the prohibition on

speaking to parties. A judge or staff member may document the complaint and submit

15 As indicated above, the ICAs are ambiguous as to the applicability of a

supplemental hourly rate or the full-day rate for workdays lasting longer than four

but shorter than eight hours.

16 Reassignment by the clerk’s office within a session does not result in additional pay

unless the session runs long as a result. The interpreter’s ability to take a lunch break

likewise does not affect pay.

17 The extent to which currently-effective ICAs set rates for non-local travel

assignments is unclear.

18 SOSi may not assign an interpreter to any hearing for which the interpreter is

disqualified.

t by the clerk’s office within a session does not result in additional pay

unless the session runs long as a result. The interpreter’s ability to take a lunch break

likewise does not affect pay.

17 The extent to which currently-effective ICAs set rates for non-local travel

assignments is unclear.

18 SOSi may not assign an interpreter to any hearing for which the interpreter is

disqualified.

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it to EOIR’s centralized Language Services Unit (“LSU”) with a recommended

minimum scope of disqualification.

Once LSU reviews the complaint, it may decide that a broader disqualification

level is appropriate.19 LSU notifies SOSi of the disqualification, after which SOSi may

take remedial action. If the reason for disqualification is interpretation-related, SOSi

may conduct a scored evaluation of the interpreter based on a recording of the

relevant hearing. In the event of a passing score, SOSi may request the interpreter’s

reinstatement. Otherwise, SOSi must retrain and reevaluate the interpreter before

seeking reinstatement. For non-interpretation-related issues, such as unprofessional

behavior, SOSi may counsel or train the interpreter and submit a request for

reinstatement in conjunction with a statement outlining the remedial steps taken.

LSU may approve or reject a reinstatement request, in consultation with the

immigration court whence the complaint originated. A disqualified interpreter may be

reinstated system-wide or with exceptions.

SOSi does not invariably seek the reinstatement of disqualified interpreters,

but rather exercises discretion. After an interpreter was disqualified in April 2016,

SOSi told the interpreter, in essence, that SOSi could do nothing for her. The

interpreter later contacted LSU and learned that SOSi had never requested her

reinstatement. Afterwards, the interpreter relayed this information to SOSi’s

Operations Manager

ly seek the reinstatement of disqualified interpreters,

but rather exercises discretion. After an interpreter was disqualified in April 2016,

SOSi told the interpreter, in essence, that SOSi could do nothing for her. The

interpreter later contacted LSU and learned that SOSi had never requested her

reinstatement. Afterwards, the interpreter relayed this information to SOSi’s

Operations Manager. Only then did SOSi report to the interpreter that SOSi was

actively seeking her reinstatement.20

SOSi can discipline interpreters independently from EOIR through a variety of

methods. Pursuant to the ICA, SOSi retains the right to terminate interpreters at will

and dock interpreters’ pay for lateness and other infractions. SOSi also rescinds or

withholds assignments as a form of discipline, such as when an interpreter cancels an

assigned case, arrives late, or prematurely leaves a hearing location.

At some EOIR locations, SOSi retains an “interpreter liaison,” who may

address disciplinary problems. A liaison working in Los Angeles (the “LA Liaison”)

sometimes counsels interpreters informally, such as when judges bring complaints to

him rather than LSU. The LA Liaison reports some, but not all, issues to SOSi. In

some instances, he may recommend that the company stop assigning cases to the

interpreter.

19 An example of a problem warranting system-wide disqualification is

incomprehensibility of an interpreter’s English.

20 The ultimate outcome of the interpreter’s disqualification was not in the

evidentiary record at the time of writing.

In

some instances, he may recommend that the company stop assigning cases to the

interpreter.

19 An example of a problem warranting system-wide disqualification is

incomprehensibility of an interpreter’s English.

20 The ultimate outcome of the interpreter’s disqualification was not in the

evidentiary record at the time of writing.

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Pursuant to the EOIR Contract, SOSi must evaluate interpreters semi-

annually. SOSi pays other interpreters, such as the LA Liaison, to conduct these

evaluations. When the LA Liaison conducts an evaluation, he observes a hearing,

evaluates the interpreter’s performance using a point system, and outlines areas that

are satisfactory or that need improvement. Point deductions may result not only from

interpretation problems, but also from failure to bring required equipment, such as a

dictionary, SOSi ID badge, or Immigration Court Terminology List. A negative

evaluation can be a basis for additional training, rescission or withholding of

assignments by SOSi, or disqualification by EOIR.

6. On-the-Job Assistance

When interpreters encounter issues at work, they generally contact their

coordinators for help in the first instance. If coordinators are unable to resolve the

issue, interpreters may communicate with SOSi’s Operations Manager or one of two

more senior Program Managers. Issues concerning payment or disqualification

generally require intervention by a SOSi official above the coordinator level.

Liaisons, where available, are another source of assistance to interpreters. One

interpreter stated that she goes to the LA Liaison with protocol-related questions

such as whether she should continue interpreting during off-the-record breaks or

what the rules concerning lunch breaks are. Some interpreters also contact the LA

Liaison with problems when they cannot reach their coordinators.

SOSi regularly sends work-related guidance to interpreters via mass email

ers. One

interpreter stated that she goes to the LA Liaison with protocol-related questions

such as whether she should continue interpreting during off-the-record breaks or

what the rules concerning lunch breaks are. Some interpreters also contact the LA

Liaison with problems when they cannot reach their coordinators.

SOSi regularly sends work-related guidance to interpreters via mass email.

This guidance may address, for example, the dress code, wearing ID badges,

courtroom demeanor, directions to hearing locations, instructions in the event a

hearing location is changed, required arrival and check-in times, how to set up

equipment in hearing rooms, and filling out COI forms. Guidance emails may include

warnings that interpreters may be disqualified if they fail to follow applicable rules.

SOSi has told interpreters that it intends to implement an electronic portal

that would give interpreters web access to schedules and the ability to upload COI

forms or download paystubs. It is unclear whether SOSi has implemented this portal

at the time of writing.

E. Duration of Relationship

The EOIR Contract requires SOSi to “make every effort” to preclude the

government from incurring costs for security investigations for the replacement of

interpreters. In that regard, SOSi must ensure that qualified interpreters perform

work under the EOIR Contract for at least one year.

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As indicated above, the initial ICAs between SOSi and incumbent interpreters

expired on August 31, 2016. That date matches the initial expiration date of the EOIR

Contract, which was subject to renewal on an annual basis up to four times at EOIR’s

discretion. In the fall of 2015, a SOSi Program Manager told the LA Liaison and other

interpreters that if EOIR renewed SOSi’s contract, the interpreters’ contracts would

be renewed as well.

The EOIR Contract was eventually renewed past August 31, 2016.

Concurrently, SOSi renewed the contracts of some, but not all, incumbent

interpreters

enewal on an annual basis up to four times at EOIR’s

discretion. In the fall of 2015, a SOSi Program Manager told the LA Liaison and other

interpreters that if EOIR renewed SOSi’s contract, the interpreters’ contracts would

be renewed as well.

The EOIR Contract was eventually renewed past August 31, 2016.

Concurrently, SOSi renewed the contracts of some, but not all, incumbent

interpreters. Prior to that time, SOSi had also begun hiring new interpreters,

reportedly with less generous hourly rates of compensation, as mentioned above.

F. Interpreters’ Invocation of Employee Rights

Since SOSi took over the EOIR Contract, interpreters have invoked employee

rights under the NLRA and other laws. Many interpreters have joined the Pacific

Media Workers Guild, Communication Workers of America Local 39521 (the “Union”).

Additionally, interpreters have submitted petitions to SOSi addressing grievances

about late payment and disqualifications. At times, interpreters have strategically

sought media coverage of their concerns, and worn bright yellow pins at work stating,

“Interpreters Deserve Respect!” Interpreters and the Union have also filed charges

against SOSi with the Region, including the instant charge, premised on the

interpreters being employees enjoying the Act’s protection.21 Finally, at least two

former SOSi interpreters have successfully sought California unemployment benefits

available to “common-law employees.”

At least once, the Employer has told the Union and/or the interpreters that the

interpreters lack protection under the Act because they are independent contractors.

On October 6, 2016, the Employer, through counsel, sent a letter to an interpreter

accusing the interpreter of violating the Employer’s instructions and her ICA by

forwarding a link to a document concerning an extension of her contract with SOSi

the Employer has told the Union and/or the interpreters that the

interpreters lack protection under the Act because they are independent contractors.

On October 6, 2016, the Employer, through counsel, sent a letter to an interpreter

accusing the interpreter of violating the Employer’s instructions and her ICA by

forwarding a link to a document concerning an extension of her contract with SOSi.

The letter stated that SOSi was “taking this matter very seriously”; that the company

had made no final decisions “about what action, if any, may be taken”; and that SOSi

expressly reserved “any legal or equitable rights or remedies[.]” The Union responded

on the interpreter’s behalf, asserting, among other things, that “to the extent any

adverse action is taken with respect to individual [i]nterpreters,” the Union believes

the Employer would thereby violate federal labor law because “interpreters have the

right to discuss and disseminate information regarding their working conditions and

term[s] of employment[.]”

21 Pending charges allege, among other things, that SOSi violated the Act by failing to

renew certain interpreters’ contracts in retaliation for protected activity.

Case 21-CA-178096

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The Employer thereafter replied to the Union, stating in part: “SOSi has

always taken and continues to take the position that the interpreters with whom it

subcontracts are independent contractors rather than employees, and feels confident

the [NLRB] will agree. Accordingly, because the interpreters are independent

contractors, their actions have no legal protection under [the Act] . . . .”

ACTION

We conclude, first, that the interpreters are employees of the Employer under

the Act, rather than independent contractors

erpreters with whom it

subcontracts are independent contractors rather than employees, and feels confident

the [NLRB] will agree. Accordingly, because the interpreters are independent

contractors, their actions have no legal protection under [the Act] . . . .”

ACTION

We conclude, first, that the interpreters are employees of the Employer under

the Act, rather than independent contractors. We conclude, further, that the

Employer has violated Section 8(a)(1) by misclassifying the interpreters as

independent contractors because the misclassification operates to chill the

interpreters’ exercise of Section 7 activity.

A. The interpreters are employees of SOSi under the Act.

“Independent contractors” are excluded from the definition of “employees” in

Section 2(3) of the Act.22 To determine whether workers are statutory employees or

independent contractors, the Board applies the common-law factors enumerated in

the Restatement (Second) of Agency § 220, as well as a related factor that asks

“whether the evidence tends to show that the putative contractor is, in fact, rendering

services as part of an independent business.”23 The common-law factors include the

following:

[1] The extent of control which, by the agreement, the

[employer] may exercise over the details of the work,

[2] whether or not the one employed is engaged in a

distinct occupation or business, [3] the kind of

occupation, with reference to whether, in the locality,

the work is usually done under the direction of the

employer or by a specialist without supervision, [4] the

skill required in the particular occupation, [5] whether

the

employer

or

the

workman

supplies

the

instrumentalities, tools, and the place of work for the

person doing the work, [6] the length of time for which

the person is employed, [7] the method of payment,

whether by the time or by the job, [8] whether or not

the work is part of the regular business of the

22 29 U.S.C. § 152(3)

the

employer

or

the

workman

supplies

the

instrumentalities, tools, and the place of work for the

person doing the work, [6] the length of time for which

the person is employed, [7] the method of payment,

whether by the time or by the job, [8] whether or not

the work is part of the regular business of the

22 29 U.S.C. § 152(3).

23 FedEx Home Delivery, 361 NLRB No. 55, slip op. at 1, 11, 12 (Sept. 30, 2014)

(emphasis in original), enforcement denied, No. 14-1196 (D.C. Cir. Mar. 3, 2017).

Case 21-CA-178096

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employer, [9] whether or not the parties believe they

are creating the relation of master and servant, and

[10] whether the principal is or is not in the business.24

The additional “independent-business factor” encompasses consideration of

whether the putative contractor has significant entrepreneurial opportunity; has a

realistic ability to work for other companies; has proprietary or ownership interest in

his or her work; and has control over important business decisions, such as the

scheduling of performance, hiring and assignment of employees, equipment

purchases, and commitment of capital.25 The Board gives weight to actual, and not

merely theoretical entrepreneurial opportunity, and also evaluates the constraints

imposed by a company on the individual’s ability to pursue this opportunity.26

Additionally, the Board considers whether the terms and conditions under which the

individual operates are “promulgated and changed unilaterally” by the employer.27

In an independent contractor analysis, “all of the incidents of the relationship

[between the employer and the worker] must be assessed and weighed with no one

factor being decisive.”28 A particular factor’s weight depends on the factual

circumstances of each case.29 When applying the relevant factors, the Board will

“construe the independent-contractor exclusion narrowly” so as not to “deny

protection to workers the Act was designed to reach.”30 The bur

the relationship

[between the employer and the worker] must be assessed and weighed with no one

factor being decisive.”28 A particular factor’s weight depends on the factual

circumstances of each case.29 When applying the relevant factors, the Board will

“construe the independent-contractor exclusion narrowly” so as not to “deny

protection to workers the Act was designed to reach.”30 The burden of proving that

workers are independent contractors rests with the party asserting independent

contractor status.31

Applying the foregoing principles and factors, we conclude that the

immigration court interpreters working for SOSi are employees of SOSi, rather than

independent contractors. Among the traditional common-law factors, only the skill

24 Id., slip op. at 2 (quoting Restatement (Second) of Agency § 220 (1958)).

25 Id., slip op. at 12.

26 Id., slip op. at 1, 12.

27 Id., slip op. at 12.

28 Id., slip op. at 1 (quoting NLRB v. United Ins. Co. of Am., 390 U.S. 254, 258 (1968)).

29 Id., slip op. at 2, 12.

30 Id., slip op. at 9–10.

31 Id., slip op. at 2 (citing BKN, Inc., 333 NLRB 143, 144 (2001)); see also Central

Transport, Inc., 247 NLRB 1482, 1483 n.1 (1980).

Case 21-CA-178096

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required in the particular occupation supports independent contractor status, while

the remaining factors either support employee status or are neutral. Additionally, the

independent-business factor supports employee status. In light of the Board’s narrow

construction of the independent-contractor exclusion and the allocation of the burden

of proof to the Employer, the multi-factor analysis decisively favors finding the

interpreters to be employees of SOSi under the Act.

1. The extent of control by the Employer favors employee status

utral. Additionally, the

independent-business factor supports employee status. In light of the Board’s narrow

construction of the independent-contractor exclusion and the allocation of the burden

of proof to the Employer, the multi-factor analysis decisively favors finding the

interpreters to be employees of SOSi under the Act.

1. The extent of control by the Employer favors employee status.

Analysis of the control factor requires weighing the degree of control the

employer retains over the details of the work against the degree of control left to the

worker.32 In determining the extent of the employer’s control, the Board excludes

from consideration those incidents of control required by governmental regulations or

contracts.33 However, where the government requirements are general in form and

allow the employer to retain flexibility to assert meaningful control according to the

employer’s needs and requirements, control so asserted is attributable to the

employer.34 Moreover, government control over details of the work necessarily

circumscribes the control left to the employer or the worker. Thus, where government

32 See FedEx Home, 361 NLRB No. 55, slip op. at 12–13 (weighing package delivery

drivers’ minimal discretion over logistical choices against employer’s “pervasive

control over the essential details of drivers’ day-to-day work”); Porter Drywall, Inc.,

362 NLRB No. 6, slip op. at 3 (Jan. 29, 2015) (comparing control retained by drywall

construction “crew leaders” and by employer); Sisters’ Camelot, 363 NLRB No. 13, slip

op. at 2 (Sept. 25, 2015) (analyzing distribution of control between door-to-door

canvassers and employer); see also City Cab Co. of Orlando, 285 NLRB 1191, 1194

l details of drivers’ day-to-day work”); Porter Drywall, Inc.,

362 NLRB No. 6, slip op. at 3 (Jan. 29, 2015) (comparing control retained by drywall

construction “crew leaders” and by employer); Sisters’ Camelot, 363 NLRB No. 13, slip

op. at 2 (Sept. 25, 2015) (analyzing distribution of control between door-to-door

canvassers and employer); see also City Cab Co. of Orlando, 285 NLRB 1191, 1194

(1987) (“The greater the personal control by the [worker], the more likely it is that the

relationship [to the employer] is that of an independent contractor.”).

33 See Air Transit, 271 NLRB 1108, 1111 (1984) (control required by, inter alia,

federal regulations and contract between employer and Federal Aviation

Administration did not establish employer control over work of owner-drivers of

airport cabs); see also, e.g., Cardinal McCloskey Services, 298 NLRB 434, 435 (1990)

(“Enforcement of laws or government regulations . . . is not considered control over

the ‘manner and means’ by which results are accomplished, because such enforcement

is, in reality, supervision by the government, not by the ‘employer.’”).

34 See People Care, Inc., 311 NLRB 1075, 1077 (1993) (state required employer to

maintain written personnel policies applicable to home healthcare workers, but left

employer with flexibility to structure personnel policies according to its needs and

requirements, concerning, e.g., whether to adopt disciplinary procedures and other

policies constituting “hallmarks” of an employer/employee relationship).

ple Care, Inc., 311 NLRB 1075, 1077 (1993) (state required employer to

maintain written personnel policies applicable to home healthcare workers, but left

employer with flexibility to structure personnel policies according to its needs and

requirements, concerning, e.g., whether to adopt disciplinary procedures and other

policies constituting “hallmarks” of an employer/employee relationship).

Case 21-CA-178096

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control is significant, even a relatively modest showing of employer control can

support employee status provided that it outweighs the control left to the worker.35

Here, the control factor favors employee status because, even though the

government, i.e., EOIR, retains significant control over the interpreters’ work, the

control left to the Employer outweighs the minimal control left to the interpreters.

Many aspects of the interpreters’ work are ultimately controlled by EOIR.

Newly-hired interpreters must pass government background investigations and

complete an I-9 form, a Declaration for Federal Employment, and, sometimes, a

loyalty oath. They must also pass an initial screening, EOIR-specific training and

testing, and an evaluation of the interpreter’s first hearing.36

While working, interpreters are subject to extensive EOIR rules, policies, and

standards, which EOIR enforces through the disqualification process.37 Interpreters

must observe a professional dress code and carry a SOSi-branded badge, additional

photo identification, a bilingual dictionary, and a language-specific Immigration

Court Terminology List. Interpreters must abide by the Code of Professional

Responsibility for Interpreters, Immigration Court Operating Guidelines,

Confidentiality Agreement for Contractor Employees, and EOIR Court Interpreter

Handbook, which dictate important aspects of the interpreters’ interpretation and

general behavior at work.38 Interpreters must use hearing room equipment without

35 See supra note 32; cf

sponsibility for Interpreters, Immigration Court Operating Guidelines,

Confidentiality Agreement for Contractor Employees, and EOIR Court Interpreter

Handbook, which dictate important aspects of the interpreters’ interpretation and

general behavior at work.38 Interpreters must use hearing room equipment without

35 See supra note 32; cf. Cardinal McCloskey, 298 NLRB at 434–438 (finding home

daycare providers to be independent contractors in part because the employer’s

ostensible control was virtually all government control and because the daycare

providers retained control over certain details of their work).

36 Although SOSi implements and administers these onboarding requirements, we

conclude that SOSi does not thereby assert control meaningfully exceeding the

government control embodied in relevant requirements in the EOIR Contract.

37 Cf. Sisters’ Camelot, 363 NLRB No. 13, slip op. at 2 (employer’s imposition of

discipline on canvassers evinced employer control over canvassers’ work, supporting

employee status); Pennsylvania Academy of the Fine Arts, 343 NLRB 846, 847 (2004)

(art models’ freedom from discipline supported independent contractor status).

38 Cf. Lancaster Symphony Orchestra, 357 NLRB 1761, 1763 (2011) (control factor

favored concert musicians’ employee status where employer controlled content and

performance of music programs and musicians were subject to employer’s dress code

and behavioral guidelines such as “maintain[ing] good posture and playing positions”

and “no talking during bows”); People Care, 311 NLRB at 1077 (employer control

evinced by discipline-backed expectation that home healthcare workers adhere to

rules in employer’s personnel manuals).

loyer controlled content and

performance of music programs and musicians were subject to employer’s dress code

and behavioral guidelines such as “maintain[ing] good posture and playing positions”

and “no talking during bows”); People Care, 311 NLRB at 1077 (employer control

evinced by discipline-backed expectation that home healthcare workers adhere to

rules in employer’s personnel manuals).

Case 21-CA-178096

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modification, and may use neither electronic dictionaries nor smartphone

applications.39 Furthermore, interpreters must document their work time and certify

the accuracy of their interpretations on COI forms.40 At the same time, interpreters

may not solicit other work while completing assignments.41

Interpreters also lack control over the time for completing specific

assignments.42 Interpreters must arrive at hearing locations an hour before hearing

start times to pass through security, check in at the clerk’s office, and set up

courtroom equipment. When hearings end, interpreters must check in with court staff

for reassignment, and may not depart from a session until released by court staff.

Mid-hearing breaks are within the exclusive control of immigration judges, and the

interpreters have no control over the availability and length of lunch breaks. “Unlike

a true independent contractor, for example, a roofer, who is hired to do a job but can

mutually arrange with the owner or general contractor when to do it and control how

long it takes, once they sign up for [an assignment], the [interpreters] have no control

over their worktime.”43

Although the aforementioned facts reveal extensive government control over

the interpreters’ work, the record also discloses significant independent control by the

Employer

d to do a job but can

mutually arrange with the owner or general contractor when to do it and control how

long it takes, once they sign up for [an assignment], the [interpreters] have no control

over their worktime.”43

Although the aforementioned facts reveal extensive government control over

the interpreters’ work, the record also discloses significant independent control by the

Employer. SOSi unilaterally decides the distribution of assignment offers to

interpreters and, through the threat of withholding or rescinding assignments,

effectively requires interpreters to accept assignments offered and keep their

schedules open.44 Additionally, SOSi requires interpreters to obtain its approval

39 Although we have found no clear indication in the record establishing that these

particular equipment-related rules are ultimately attributable to EOIR, we assume

that to be the case for purposes of this analysis.

40 Cf. Sisters’ Camelot, 363 NLRB No. 13, slip op. at 2 (employer controlled

canvassers’ work through requirement that canvassers complete and submit detailed

records of houses visited and the outcomes of visits).

41 Cf. id. (employer exercised control by prohibiting canvassers from soliciting

contributions for other causes during work time).

42 Cf. id. (employer exercised control by setting daily start and end times for

canvassing).

43 Lancaster Symphony, 357 NLRB at 1764.

44 See FedEx Home, 361 NLRB No. 55, slip op. at 12–13 (employer exercised pervasive

control over essential details of delivery drivers’ day-to-day work, weighing in favor of

employee status, by requiring drivers to make their delivery vehicles available

Tuesday through Sunday, configuring drivers’ service areas, and controlling the

g).

43 Lancaster Symphony, 357 NLRB at 1764.

44 See FedEx Home, 361 NLRB No. 55, slip op. at 12–13 (employer exercised pervasive

control over essential details of delivery drivers’ day-to-day work, weighing in favor of

employee status, by requiring drivers to make their delivery vehicles available

Tuesday through Sunday, configuring drivers’ service areas, and controlling the

Case 21-CA-178096

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before giving an assignment up to a substitute SOSi interpreter.45 When assignments

require flights or overnight accommodations, SOSi arranges these unilaterally.

SOSi also controls aspects of interpreters’ behavior inside and outside the

workplace independently of EOIR. SOSi forbids interpreters from completing EOIR

Contract work for another company without SOSi’s approval, and also forbids

interpreters from completing tasks for the immigration courts that fall outside the

scope of the EOIR Contract. SOSi relies on COI forms to track interpreters’

completion of work for its own purposes, as evidenced by the fact that interpreters

must submit COI forms to SOSi for which the company will not obtain payment from

EOIR (e.g., for “relay” interpreting).46 Additionally, SOSi’s Code of Business Ethics

and Conduct prohibits actions such as using social media to discuss SOSi’s business,

and requires actions such as reporting ethical violations by other SOSi personnel.

A further indicator of employer control is SOSi’s ability to discipline

interpreters through multiple means47: counseling, at-will termination, pay

deductions, and rescission or withholding of assignments. Additionally, when an

interpreter is disqualified by EOIR, SOSi maintains discretion to pursue remedial

action and seek the interpreter’s reinstatement.

number of stops to be made and packages to be delivered); Sisters’ Camelot, 363

NLRB No. 13, slip op

at-will termination, pay

deductions, and rescission or withholding of assignments. Additionally, when an

interpreter is disqualified by EOIR, SOSi maintains discretion to pursue remedial

action and seek the interpreter’s reinstatement.

number of stops to be made and packages to be delivered); Sisters’ Camelot, 363

NLRB No. 13, slip op. at 2 (employer exercised control by unilaterally assigning

canvassers to territories); Postmates, Inc., Case 13-CA-163079, Advice Memorandum

dated Sept. 19, 2016, at 13 (although independent contractor agreement stated that

couriers could accept or reject jobs, employer in reality exercised control by

undermining couriers’ ability to reject jobs); cf. Pennsylvania Academy, 343 NLRB at

847 (models’ freedom to control their schedules supported independent contractor

status).

45 Cf. DIC Animation City, 295 NLRB 989, 991 (1989) (animation writers could decide

to perform writing work individually or with a team, supporting independent

contractor status).

46 See Sisters’ Camelot, 363 NLRB No. 13, slip op. at 2 (employer controlled

canvassers’ work through requirement that canvassers complete and submit detailed

records of houses visited and the outcomes of visits).

47 See id. (employer’s imposition of discipline on canvassers evinced control over

canvassers’ work, supporting employee status); cf. Pennsylvania Academy, 343 NLRB

at 847 (workers’ freedom from employer discipline supported independent contractor

status); Cardinal McCloskey, 298 NLRB at 435 (meaningful employer control absent

where employer could not discipline daycare providers, but could merely make

notations in providers’ files that were ultimately reviewed by government agency or, if

a home posed a serious hazard to children, remove children from the home).

workers’ freedom from employer discipline supported independent contractor

status); Cardinal McCloskey, 298 NLRB at 435 (meaningful employer control absent

where employer could not discipline daycare providers, but could merely make

notations in providers’ files that were ultimately reviewed by government agency or, if

a home posed a serious hazard to children, remove children from the home).

Case 21-CA-178096

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In comparison to the Employer, the interpreters retain little meaningful control

over the details of their work. Although in theory interpreters may control their

schedules and turn down assignments, in practice their freedom to do so is limited by

pressure from SOSi. Also, though interpreters may obtain substitutes to cover their

assignments, they may only do so with Employer approval. And, while interpreting,

interpreters do not exercise significant independence, but instead follow EOIR and

SOSi’s extensive rules, policies, and standards. Although SOSi’s government

customer controls many aspects of the work, the Employer’s degree of control

nonetheless outweighs the freedom retained by interpreters, supporting employee

status.48

2. Whether the interpreter is engaged in a distinct occupation or business

favors employee status.

The interpreters do not engage in a distinct occupation or business when

interpreting for SOSi. Interpreters work in SOSi’s name, as evinced by their

mandatory SOSi-branded identification badges, lanyards, and COI forms, as well as

their inability to solicit work while on assignment or compete with SOSi.49

48 See People Care, 311 NLRB at 1077 (employer retained significant control,

supporting home healthcare workers’ employee status, through disciplinary

procedure, personnel rules, and ability to respond directly to workers’ on-the-job

problems, even though employer’s customers determined the type, scope, and

duration of work in addition to directing and evaluating performance of dut

48 See People Care, 311 NLRB at 1077 (employer retained significant control,

supporting home healthcare workers’ employee status, through disciplinary

procedure, personnel rules, and ability to respond directly to workers’ on-the-job

problems, even though employer’s customers determined the type, scope, and

duration of work in addition to directing and evaluating performance of duties); cf.

Cardinal McCloskey, 298 NLRB at 434–38 (home daycare providers were independent

contractors where virtually all of employers’ supervision and control was exercised

pursuant to government requirements and daycare providers worked in their own

homes, could limit the number of children under their care, and could take time off

without employer permission).

49 See Sisters’ Camelot, 363 NLRB No. 13, slip op. at 3 (canvassers’ presentations and

distribution of materials clearly identified them as working for the employer,

supporting employee status); FedEx Home, 361 NLRB No. 55, slip op. at 13 (delivery

drivers’ uniforms and logos and colors on delivery vehicles established that drivers did

business in employer’s name rather than their own, supporting employee status,

notwithstanding that some drivers operated as incorporated businesses); cf. Porter

Drywall, 362 NLRB No. 6, slip op. at 3 (crew leaders’ ability to compete with the

employer for work supported independent contractor status).

Case 21-CA-178096

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Moreover, the interpreters are fully integrated into SOSi’s organization and

receive significant on-the-job assistance from SOSi.50 Interpreters rely on SOSi to

provide them with assignments; COI forms; terminology lists; information about

EOIR’s rules, policies, and standards; initial training; and as-needed retraining or

counseling. Coordinators and liaisons address interpreters’ questions, scheduling

conflicts, and lateness. More senior SOSi officials resolve issues concerning payment

or disqualification

e from SOSi.50 Interpreters rely on SOSi to

provide them with assignments; COI forms; terminology lists; information about

EOIR’s rules, policies, and standards; initial training; and as-needed retraining or

counseling. Coordinators and liaisons address interpreters’ questions, scheduling

conflicts, and lateness. More senior SOSi officials resolve issues concerning payment

or disqualification. Through mass emails, SOSi also shares guidance with interpreters

as to rules and policies, such as the dress code, courtroom demeanor, and instructions

for filling out COI forms and setting up courtroom equipment.51

Facts that the Board has found to support independent contractor status under

the distinct-occupation factor are largely absent here. Interpreters do not supply

expensive or specialized equipment.52 And, although the ICAs require interpreters to

indemnify SOSi for any liability to others resulting from inadequate work, there is no

evidence that an indemnification clause is meaningful in the immigration court

interpretation context, unlike in the construction industry.53 Finally, though

interpreters may conduct non-EOIR interpretation work when not actively working

for SOSi, this solitary fact is not dispositive,54 particularly since SOSi places practical

restraints on interpreters’ ability to take on outside work. In sum, the interpreters are

not engaged in a distinct occupation or business, favoring employee status.

50 See FedEx Home, 361 NLRB No. 55, slip op. at 13 (delivery drivers’ integration into

employer’s organization and assistance from employer supported employee status);

Sisters’ Camelot, 363 NLRB No. 13, slip op. at 3 (employer’s control over canvassers

and canvassers’ importance to employer’s operations showed that canvassers were

well integrated into employer’s organization, supporting employee status)

Ex Home, 361 NLRB No. 55, slip op. at 13 (delivery drivers’ integration into

employer’s organization and assistance from employer supported employee status);

Sisters’ Camelot, 363 NLRB No. 13, slip op. at 3 (employer’s control over canvassers

and canvassers’ importance to employer’s operations showed that canvassers were

well integrated into employer’s organization, supporting employee status).

51 If, at the time of trial, SOSi has implemented the previously-announced web portal

for access to schedules and other functions, that portal would constitute a further

instance of on-the-job assistance.

52 Cf. Porter Drywall, 362 NLRB No. 6, slip op. at 3 (crew leaders maintained and

supplied equipment that they used when working for employer or other contractors).

53 Cf. id. (crew leaders were required to indemnify the employer for damage claims

arising from the work of their crews).

54 See Sisters’ Camelot, 363 NLRB No. 13, slip op. at 2 (ability to work for multiple

employers when not actively soliciting for the employer did not make canvassers

independent contractors).

Case 21-CA-178096

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3. Whether the work is usually done under the direction of the employer or

by a specialist without supervision favors employee status.

Interpreters are subject to extensive supervision by SOSi and EOIR, supporting

employee status. As discussed in the “extent of control” analysis, interpreters work

under pervasive discipline-backed rules, policies, and standards.55 SOSi monitors

compliance through COI forms,56 feedback from EOIR staff,57 and periodic

evaluations.58 Although SOSi does not usually supervise interpreters in person, the

“direction” factor favors employee status.59

4. The skill required in the occupation favors independent contractor

status.

Immigration court interpretation is skilled work, and interpreters must have at

least a year of judicial interpretation experience or a relevant certification to work for

SOSi

periodic

evaluations.58 Although SOSi does not usually supervise interpreters in person, the

“direction” factor favors employee status.59

4. The skill required in the occupation favors independent contractor

status.

Immigration court interpretation is skilled work, and interpreters must have at

least a year of judicial interpretation experience or a relevant certification to work for

SOSi. Thus, the skill factor supports independent contractor status.60

55 See FedEx Home, 361 NLRB No. 55, slip op. at 13 (direction by employer,

supporting employee status, evinced in requirement that delivery drivers adhere to

strict company protocol, with guidelines governing dress, appearance, safety, and

details of package delivery).

56 See Sisters’ Camelot, 363 NLRB No. 13, slip op. at 3 (employer’s extensive

recordkeeping requirements constituted supervision supporting employee status);

FedEx Home, 361 NLRB No. 55, slip op. at 13 (employer ability to track and discipline

delivery drivers for violations of contractual rules and procedures supported employee

status under “direction” factor).

57 See Postmates, Advice Memorandum at 16 (employer supervised delivery couriers

through reliance on customer ratings and reviews in deciding to coach or terminate

delivery couriers); SpoonRocket, Case 32-CA-144189, Advice Memorandum dated July

28, 2015, at 5 (employer counseled and disciplined delivery drivers based on customer

feedback and reviews).

58 See FedEx Home, 361 NLRB No. 55, slip op. at 13 (employer supervised drivers

through periodic audits and appraisals of driver performance).

59 See, e.g., id. (direction by employer did not depend on continuous in-person

supervision).

60 See Lancaster Symphony, 357 NLRB at 1766 (high skill level of concert musicians

militated in favor of independent contractor status).

dback and reviews).

58 See FedEx Home, 361 NLRB No. 55, slip op. at 13 (employer supervised drivers

through periodic audits and appraisals of driver performance).

59 See, e.g., id. (direction by employer did not depend on continuous in-person

supervision).

60 See Lancaster Symphony, 357 NLRB at 1766 (high skill level of concert musicians

militated in favor of independent contractor status).

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5. Whether the Employer or interpreter supplies the instrumentalities,

tools, and place of work is a neutral factor.

Where the employer’s and the worker’s contributions to the instrumentalities,

tools, and place of work are roughly equitable, the “instrumentalities” factor is

neutral.61 Such is the case here. Interpreters rely on SOSi for COI forms, badges,

lanyards, terminology lists, and documentation of rules and standards. Interpreters,

meanwhile, are responsible for notepads, writing utensils, and dictionaries. It is EOIR

that provides the costliest instrumentalities: hearing rooms and the equipment

therein. As the instrumentalities that SOSi and interpreters provide are both

comparatively negligible and roughly equitable to each other in value, the

instrumentalities factor is neutral.

6. The length of time for which the interpreter is employed favors

employee status.

Both the interpreters and SOSi intend their relationship to be of indefinite

duration, supporting employee status.62 Numerous incumbent interpreters had

worked in the immigration courts for over a decade under SOSi’s predecessor

contractors, and many interpreters described SOSi work as their “principal” or “full-

time” job. Although the incumbent interpreters’ initial ICAs with SOSi were effective

for a defined term—October 31, 2015, to August 31, 2016—SOSi’s statements and

actions shows that SOSi likewise intended to form open-ended relationships with

interpreters, adopting the end date for ICAs only because the EOIR Contract itself

was subject to EOIR’s decision to renew

s their “principal” or “full-

time” job. Although the incumbent interpreters’ initial ICAs with SOSi were effective

for a defined term—October 31, 2015, to August 31, 2016—SOSi’s statements and

actions shows that SOSi likewise intended to form open-ended relationships with

interpreters, adopting the end date for ICAs only because the EOIR Contract itself

was subject to EOIR’s decision to renew. Thus, the length-of-time factor favors

employee status.

7. The method of payment favors employee status.

Interpreters are essentially paid by time, rather than by job, which supports

employee status.63 As indicated above, SOSi reportedly pays newer interpreters on an

hourly basis. The incumbent interpreters effectively receive hourly wages as well. For

non-travel assignments, they receive $225 to work a four-hour court session (a half

61 See, e.g., id. (factor neutral where musicians supplied instruments and clothes, but

employer supplied music, stands, chairs, and concert hall).

62 See, e.g., FedEx Home, 361 NLRB No. 55, slip op. at 14 (length-of-time factor

favored employee status where drivers could expect to continue working as long as

they performed satisfactorily, based on one- or two-year agreements that

automatically renewed upon expiration, and drivers’ sizeable capital investments).

63 See, e.g., Lancaster Symphony, 357 NLRB at 1766.

irs, and concert hall).

62 See, e.g., FedEx Home, 361 NLRB No. 55, slip op. at 14 (length-of-time factor

favored employee status where drivers could expect to continue working as long as

they performed satisfactorily, based on one- or two-year agreements that

automatically renewed upon expiration, and drivers’ sizeable capital investments).

63 See, e.g., Lancaster Symphony, 357 NLRB at 1766.

Case 21-CA-178096

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day); $425 (i.e., almost twice the half-day amount) for an eight-hour workday

comprising two sessions (a full day); an hourly supplement when scheduled workdays

run long; and a 10% premium fee for assignments issued on short notice. Thus, the

incumbent interpreters’ compensation for non-travel assignments has a roughly

linear relationship to hours worked, approximating an hourly-wage model.64

Additionally, the record does not suggest that travel compensation significantly

departs from this model. Accordingly, the interpreters’ rate structure supports

employee status under the method-of-payment factor.65

Further supporting employee status is that individual interpreters have at

most limited ability to negotiate rates of compensation.66 Only through concerted

action were incumbent interpreters able to negotiate rates in their initial ICAs.

Additionally, although interpreters ostensibly are free to negotiate travel rates, the

Employer has retaliated against some interpreters for seeking their desired rates by

withholding assignments from them.

One payment-related fact supporting independent contractor status is that

SOSi does not withhold taxes or provide insurance or benefits.67 On balance, however,

the method of payment factor supports employee status.68

64 Although, in theory, an interpreter could be released before the end of a session and

receive a half or full day’s pay for much less than four or eight hours of work,

respectively, there is no evidence that this occurs with significant frequency

efits.67 On balance, however,

the method of payment factor supports employee status.68

64 Although, in theory, an interpreter could be released before the end of a session and

receive a half or full day’s pay for much less than four or eight hours of work,

respectively, there is no evidence that this occurs with significant frequency. To the

contrary, the record establishes that, due to reassignment by court staff, interpreters

generally continue working through the scheduled end of a session, or longer.

65 See Lancaster Symphony, 357 NLRB at 1765–66 (payment scheme whereby

musicians received a set payment for each appearance and an added payment for

every 15 minutes over 2-1/2 hours approximated hourly wage, thereby supporting

employee status); cf. Pennsylvania Academy, 343 NLRB at 847 (payment “by class,”

rather than by hour or salary basis, supported independent contractor status).

66 See FedEx Home, 361 NLRB No. 55, slip op. at 14 (employer’s unilateral control of

compensation rates supported employee status).

67 See, e.g., Pennsylvania Academy, 343 NLRB at 847 (lack of fringe benefits

supported independent contractor status).

68 See FedEx Home, 361 NLRB No. 55, slip op. at 14 (although lack of fringe benefits

and tax withholding weighed in favor of independent contractor status, these

considerations were outweighed by employer control of driver compensation).

ion rates supported employee status).

67 See, e.g., Pennsylvania Academy, 343 NLRB at 847 (lack of fringe benefits

supported independent contractor status).

68 See FedEx Home, 361 NLRB No. 55, slip op. at 14 (although lack of fringe benefits

and tax withholding weighed in favor of independent contractor status, these

considerations were outweighed by employer control of driver compensation).

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8. Whether the work is part of the regular business of the Employer favors

employee status.

The EOIR Contract constitutes a part of SOSi’s government contracting

business in linguistics and other fields. The interpreters’ services, meanwhile, are

fundamental to SOSi’s fulfillment of that contract. Thus, the interpreters’ work lies at

the core of SOSi’s regular business, militating heavily in favor of employee status.69

9. Whether the parties believe they are creating a master-servant

relationship is a neutral factor.

SOSi’s ICA purports to establish an independent-contractor relationship, not

an employment relationship. However, interpreters did not negotiate that term with

SOSi. Additionally, many interpreters have invoked employee rights recognized under

the Act: joining the Union, asserting employee status in NLRB proceedings, and

engaging in other concerted activity aimed at improving terms and conditions of their

work with SOSi. Furthermore, terminated interpreters have sought and obtained

unemployment benefits in California, which shows that these interpreters believed

they were employees because “independent contractors” would not be entitled to those

benefits. Thus, the evidence of the parties’ intent as to the nature of their relationship

is inconclusive.70

10. Whether the principal is or is not in the business favors employee status.

The EOIR Contract and ICAs establish that both SOSi and the interpreters

provide immigration court interpretation services to EOIR

mployees because “independent contractors” would not be entitled to those

benefits. Thus, the evidence of the parties’ intent as to the nature of their relationship

is inconclusive.70

10. Whether the principal is or is not in the business favors employee status.

The EOIR Contract and ICAs establish that both SOSi and the interpreters

provide immigration court interpretation services to EOIR. Thus, SOSi is in the same

business as the interpreters, which supports employee status.71

69 See id. (regular-business factor weighed heavily in favor of employee status where

service provided by workers constituted “the very core of [the employer’s] business”)

(quoting Roadway Package System, Inc., 326 NLRB 842, 851 (1998)); Porter Drywall,

362 NLRB No. 6, slip op. at 5 (same).

70 See FedEx Home, 361 NLRB No. 55, slip op. at 14 (intent factor inconclusive where

contract between employer and delivery drivers designated drivers as independent

contractors, but employer imposed term unilaterally and majority of drivers voted for

union representation); Lancaster Symphony, 357 NLRB at 1766 (intent factor

inconclusive where contract characterized musicians as independent contractors,

musician playing with employer for thirty-two years considered himself an employee,

and at least 30% of musicians signed cards reflecting interest in union

representation).

71 See FedEx Home, 361 NLRB No. 55, slip op. at 15 (factor weighed in favor of

employee status where employer documentation showed that employer was engaged

racterized musicians as independent contractors,

musician playing with employer for thirty-two years considered himself an employee,

and at least 30% of musicians signed cards reflecting interest in union

representation).

71 See FedEx Home, 361 NLRB No. 55, slip op. at 15 (factor weighed in favor of

employee status where employer documentation showed that employer was engaged

Case 21-CA-178096

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11. The interpreter is not rendering services as part of an independent

business, favoring employee status.

As indicated above, the “independent-business factor” encompasses

consideration of whether the worker has significant entrepreneurial opportunity; has

a realistic ability to work for other companies; has proprietary or ownership interest

in his or her work; and has control over important business decisions, such as the

scheduling of performance, hiring and assignment of employees, equipment

purchases, and commitment of capital.72 Here, the interpreters’ ability to work for

other companies is a neutral sub-factor, while the remaining sub-factors decisively

favor employee status.

a. The interpreters lack significant entrepreneurial opportunity.

The compensation model for interpreters does not provide entrepreneurial

opportunity. As discussed above, interpreters’ earnings depend primarily on the

number of hours they work for SOSi; variables such as the difficulty of interpretation

or quality of performance (above minimum competence) are irrelevant.73 Additionally,

since interpreters cannot conduct or solicit other work on assignment, interpreters

have no entrepreneurial opportunities while actively working for SOSi.74 At the same

time, completing assignments involves no entrepreneurial risk: interpreters can

expect payment for time spent working.75

Long-distance travel assignments provide at most a negligible amount of actual

entrepreneurial opportunity to interpreters offered such assignments

other work on assignment, interpreters

have no entrepreneurial opportunities while actively working for SOSi.74 At the same

time, completing assignments involves no entrepreneurial risk: interpreters can

expect payment for time spent working.75

Long-distance travel assignments provide at most a negligible amount of actual

entrepreneurial opportunity to interpreters offered such assignments. In theory,

in same business as workers); accord Porter Drywall, 362 NLRB No. 6, slip op. at 5; cf.

Pennsylvania Academy, 343 NLRB at 847 (academy was in the business of providing

instruction to art students, while models were in the different business of modeling).

72 FedEx Home, 361 NLRB No. 55, slip op. at 12.

73 See Lancaster Symphony, 357 NLRB at 1764 (no entrepreneurial opportunity or

risk where, inter alia, musicians were paid set fees, and did not receive more or less

money based on ticket sales or quality of individual performance).

74 See Sisters’ Camelot, 363 NLRB No. 13, slip op. at 5 (employer’s prohibition on

soliciting for other organizations while canvassing limited canvassers’ entrepreneurial

opportunity).

75 Cf. DIC Animation City, 295 NLRB at 991 (animation writers bore entrepreneurial

risks where writers exerted time, effort, and travel to solicit work, but were not paid if

employer rejected their story ideas).

Case 21-CA-178096

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interpreters can negotiate travel rates and decide to accept or reject assignments in

light of the payment offered and travel time required. However, as discussed above,

SOSi has retaliated against some interpreters for attempting to negotiate travel rates

and restricts interpreters’ ability to reject assignments. Thus, travel assignments do

not provide significant actual entrepreneurial opportunity even to those interpreters

offered such assignments. Fundamentally, the interpreters’ work for SOSi is non-

entrepreneurial, supporting employee status.

b

bove,

SOSi has retaliated against some interpreters for attempting to negotiate travel rates

and restricts interpreters’ ability to reject assignments. Thus, travel assignments do

not provide significant actual entrepreneurial opportunity even to those interpreters

offered such assignments. Fundamentally, the interpreters’ work for SOSi is non-

entrepreneurial, supporting employee status.

b. The interpreters have limited ability to work for others.

Many interpreters work for SOSi at least four weekdays per week, between

approximately 8:00 a.m. and 5:00 p.m. Some interpret exclusively for SOSi, and

others give precedence to SOSi assignments, as SOSi effectively requires. Thus, SOSi

requires a commitment of time and schedule availability that limits interpreters’

ability to pursue other interpretation opportunities, which supports employee

status.76 Nonetheless, at least a minority of interpreters regularly take on other

interpretation jobs, which supports independent contractor status.77 These conflicting

considerations render this sub-factor neutral.

c. The interpreters have no proprietary or ownership interest in the

work.

The interpreters may not subcontract their assignments,78 and SOSi controls

the distribution of assignments to interpreters.79 Additionally, no other evidence

suggests that interpreters have any proprietary or ownership interest in their work.

Thus, this sub-factor favors employee status.

76 FedEx Home, 361 NLRB No. 55, slip op. at 15 (drivers did not use delivery vehicles

for purposes other than work for employer because of practical obstacles inherent in

working for the employer, which supported employee status).

77 Pennsylvania Academy, 343 NLRB at 847 (models’ freedom to work for other

schools and artists supported independent contractor status). But see Sisters’ Camelot,

363 NLRB No. 13, slip op

No. 55, slip op. at 15 (drivers did not use delivery vehicles

for purposes other than work for employer because of practical obstacles inherent in

working for the employer, which supported employee status).

77 Pennsylvania Academy, 343 NLRB at 847 (models’ freedom to work for other

schools and artists supported independent contractor status). But see Sisters’ Camelot,

363 NLRB No. 13, slip op. at 5 (canvassers’ ability to work for others when not

actively working for employer was indicative of part-time work schedule and had

“little bearing on whether canvassers [were] employees or independent contractors”).

78 See Sisters’ Camelot, 363 NLRB No. 13, slip op. at 5 (canvassers lacked proprietary

interest in the geographical areas to which they were assigned).

79 See Lancaster Symphony, 357 NLRB at 1764–65 (noting absence of indication that

musicians could assign or sell their orchestra positions).

Case 21-CA-178096

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d. The Interpreters do not control important business decisions.

Interpreters’ sole business decisions concern their schedule availability,

acceptance or rejection of offered assignments, and, in rare cases, proposing travel

rates. And, as discussed above, SOSi constrains interpreters’ decisionmaking in each

of these areas. Moreover, interpreters lack control over the terms of interpretation

assignments, such as the start and end times of hearings; make no personnel

decisions; play no role in the business relationship between SOSi and EOIR; and

make no significant equipment purchases or capital investments. The interpreters’

lack of control over such business decisions supports employee status.80

Because the other sub-factors of the “independent-business” factor either

support employee status or are neutral, that factor overall supports employee status

as well.

Thus, consideration of all incidents of the relationship between SOSi and the

interpreters establishes that the interpreters are SOSi’s employees

s’

lack of control over such business decisions supports employee status.80

Because the other sub-factors of the “independent-business” factor either

support employee status or are neutral, that factor overall supports employee status

as well.

Thus, consideration of all incidents of the relationship between SOSi and the

interpreters establishes that the interpreters are SOSi’s employees. To be sure, SOSi’s

government customer, EOIR, controls many details of the interpreters’ work. But

SOSi likewise exerts significant control. Meanwhile, the interpreters, who are closely

supervised by SOSi and EOIR, maintain little control over the details of their work.

Additionally, the interpreters work in SOSi’s name for an indefinite duration, and are

a critical and well-integrated component of SOSi’s regular business providing

immigration court interpretation services. Moreover, interpreters effectively earn

hourly pay, lack significant entrepreneurial opportunity or proprietary interest in

their work, and control no important business decisions. Although the interpreters

are skilled workers, that sole factor is insufficient to establish independent contractor

status.81 In light of the Board’s narrow construction of the independent-contractor

exclusion and the allocation of the burden of proof to the Employer, the multi-factor

analysis decisively favors finding the interpreters to be employees of SOSi under the

Act.

80 See FedEx Home, 361 NLRB No. 55, slip op. at 4, 15 (delivery drivers had no control

over important business decisions, supporting employee status, where employer had

total control over business strategy, customer base and recruitment, prices charged to

customers, and terms of drivers’ work, even though some drivers operated as

incorporated businesses); Sisters’ Camelot, 363 NLRB No. 13, slip op

ee FedEx Home, 361 NLRB No. 55, slip op. at 4, 15 (delivery drivers had no control

over important business decisions, supporting employee status, where employer had

total control over business strategy, customer base and recruitment, prices charged to

customers, and terms of drivers’ work, even though some drivers operated as

incorporated businesses); Sisters’ Camelot, 363 NLRB No. 13, slip op. at 5 (canvassers

lacked control over important business decisions where, inter alia, canvassers had no

influence on the selection or assignment of canvassing territory, made no monetary

investments in connection with their work, and made no personnel decisions).

81 See Lancaster Symphony, 357 NLRB at 1766 (“The musicians are highly skilled,

but so are many other types of employees who are covered by the Act.”).

Case 21-CA-178096

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B. SOSi has violated Section 8(a)(1) by misclassifying interpreters as

independent contractors.

Section 8(a)(1) makes it unlawful for an employer “to interfere with, restrain, or

coerce employees in the exercise of” employees’ Section 7 rights.82 Although the Board

has never held that an employer’s misclassification of statutory employees as

independent contractors in itself violates Section 8(a)(1), several lines of Board

decisions support such a finding.

First, the Board has held that an employer violates Section 8(a)(1) when its

actions operate to chill or curtail future Section 7 activity of statutory employees.83 In

Parexel International, the Board made clear that an employer’s “preemptive strike to

prevent [an employee] from engaging in activity protected by the Act” violates Section

8(a)(1) because of its chilling effect on employees’ future exercise of their Section 7

rights.84 Even if an employee has no history of Section 7 activity, employer action to

prevent that employee from engaging in protected activity in the future “interferes

with and restrains the exercise of Section 7 rights and is unlawful without more.”85

The Board also noted that suppres

violates Section

8(a)(1) because of its chilling effect on employees’ future exercise of their Section 7

rights.84 Even if an employee has no history of Section 7 activity, employer action to

prevent that employee from engaging in protected activity in the future “interferes

with and restrains the exercise of Section 7 rights and is unlawful without more.”85

The Board also noted that suppression or chilling of future protected activity lies at

the heart of most unlawful employer retaliation against past protected activity.86

Similarly, Board precedent holding unlawful an employer’s adverse action taken on

82 29 U.S.C. § 158(a)(1). In contrast, an employer does not violate the Act if it

interferes with, restrains, or coerces the exercise of what would otherwise constitute

Section 7 rights by individuals who are not statutory employees. See Wal-Mart Stores,

Inc., 340 NLRB 220, 223 (2003) (employer’s instruction to group of twenty-two

putative statutory supervisors that they could not engage in union activity only

violated Section 8(a)(1) with respect to the four who were actually statutory

employees).

83 See, e.g., Parexel International, LLC, 356 NLRB 516, 518–19 (2011) (employer

violated Section 8(a)(1) by discharging an employee to prevent her from discussing

wages with other employees); Lafayette Park Hotel, 326 NLRB 824, 825 (1998)

(maintenance of rules that would reasonably tend to chill employees’ exercise of

Section 7 rights violates Section 8(a)(1)), enforced mem., 203 F.3d 52 (D.C. Cir. 1999).

84 356 NLRB at 517, 519.

85 Id. at 519.

86 Id.

(2011) (employer

violated Section 8(a)(1) by discharging an employee to prevent her from discussing

wages with other employees); Lafayette Park Hotel, 326 NLRB 824, 825 (1998)

(maintenance of rules that would reasonably tend to chill employees’ exercise of

Section 7 rights violates Section 8(a)(1)), enforced mem., 203 F.3d 52 (D.C. Cir. 1999).

84 356 NLRB at 517, 519.

85 Id. at 519.

86 Id.

Case 21-CA-178096

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the mistaken belief that an employee engaged in protected concerted activity is

premised on the notion that the chilling of future protected activity violates the Act.87

Second, employer statements to employees that engaging in Section 7 activity

would be futile violate Section 8(a)(1).88 Thus, in Sisters’ Camelot, the Board found

that the employer violated Section 8(a)(1) by indicating that union organizing would

be futile when it informed its canvasser employees, who had been misclassified as

independent contractors and were attempting to organize, that it would never accept

an employer-employee relationship with its workers.89

Third, the Board has found misstatements of law to constitute unlawful

interference with employees’ Section 7 rights if the statement reasonably insinuates

adverse consequences for engaging in Section 7 activity.90 For example, employer

statements suggesting that employees could “lose their jobs” as a consequence of

engaging in an economic strike inaccurately describe economic strikers’ rights and

therefore constitute unlawful threats of reprisal.91

87 See, e.g., United States Service Industries, Inc., 314 NLRB 30, 31 (1994), enforced

mem., 80 F.3d 558 (D.C. Cir. 1996).

88 See, e.g., M.D. Miller Trucking & Topsoil, Inc., 361 NLRB No. 141, slip op. at 1

(Dec

an economic strike inaccurately describe economic strikers’ rights and

therefore constitute unlawful threats of reprisal.91

87 See, e.g., United States Service Industries, Inc., 314 NLRB 30, 31 (1994), enforced

mem., 80 F.3d 558 (D.C. Cir. 1996).

88 See, e.g., M.D. Miller Trucking & Topsoil, Inc., 361 NLRB No. 141, slip op. at 1

(Dec. 16, 2014) (concluding that employer’s statement that employees’ grievance

would go nowhere constituted unlawful threat of futility); North Star Steel Co., 347

NLRB 1364, 1365 (2006) (employer’s statement that collective bargaining would not

result in employees obtaining benefits other than what employer chose to give them

and unionization would lead employer to choose to give them less violated Section

8(a)(1) because employees “could reasonably infer futility of union representation”).

89 363 NLRB No. 13, slip op. at 6.

90 See, e.g., BP Amoco Chemical-Chocolate Bayou, 351 NLRB 614, 617, 618 & n.22

(2007) (employer’s flyer that misled employees by creating impression that employees

would have to give up customary wage increases as a “lawful and ineluctable

consequence” of bargaining violated Section 8(a)(1)); Taylor-Dunn Mfg. Co., 252

NLRB 799, 799 n.2 (1980) (misstating law by implying that union would have right to

demand that employees pay union fines and assessments and accede to contractual

dues checkoff to retain their jobs was unlawful in context of other threats), enforced

mem., 679 F.2d 900 (9th Cir. 1982).

91 See, e.g., Fern Terrace Lodge, 297 NLRB 8, 8–9 (1989) (statement that permanently

“replaced striker is not automatically entitled to his job back just because the strike

ends” unlawful, because economic strikers are automatically entitled to their jobs

back, or, if their job is unavailable, preferential hiring to similar openings).

r threats), enforced

mem., 679 F.2d 900 (9th Cir. 1982).

91 See, e.g., Fern Terrace Lodge, 297 NLRB 8, 8–9 (1989) (statement that permanently

“replaced striker is not automatically entitled to his job back just because the strike

ends” unlawful, because economic strikers are automatically entitled to their jobs

back, or, if their job is unavailable, preferential hiring to similar openings).

Case 21-CA-178096

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Based on the foregoing principles, the Division of Advice concluded in Pacific 9

Transportation,92 Liberty Transportation Group,93 and Menard, Inc.94 that employers

violated Section 8(a)(1) by misclassifying their employees as independent contractors.

Under those same principles, SOSi’s misclassification of its employees as

independent contractors restrains and interferes with the employees’ exercise of their

Section 7 rights. Notably, the Employer stated in a letter to the Union that the

“interpreters[’] actions have no legal protection under” the Act “because the

interpreters are independent contractors[.]” This communication would presumptively

be shared with SOSi interpreters associated with the Union, including, at a

minimum, the employee whose conduct was the topic of the letter. Particularly in

light of the employees’ history of Section 7 activity, including joining the Union and

collectively seeking the redress of grievances by the Employer, the Employer’s

misclassification suppresses future Section 7 activity by imparting to its employees

that they do not possess Section 7 rights in the first place.95 Additionally, the

Employer’s insistence that its interpreters are independent contractors is a

misstatement of law that reasonably insinuates both adverse consequences for

employees’ continued Section 7 activity and the futility of pursuing the Board’s

processes to remedy unfair labor practices

ivity by imparting to its employees

that they do not possess Section 7 rights in the first place.95 Additionally, the

Employer’s insistence that its interpreters are independent contractors is a

misstatement of law that reasonably insinuates both adverse consequences for

employees’ continued Section 7 activity and the futility of pursuing the Board’s

processes to remedy unfair labor practices. Thus, the Employer’s misclassification

works as a preemptive strike to chill its employees from exercising their rights under

the Act during a period in which many of the employees are seeking Union

representation and attempting to adjust grievances against the Employer.

Based on the foregoing, the Region should issue a complaint, absent settlement,

alleging that the Employer’s misclassification of its employees as independent

contractors violates Section 8(a)(1).

Since SOSi retains immigration court interpreters nationwide to service the

EOIR Contract, a nationwide remedy is likely warranted. Prior to issuing complaint,

the Region should provide the Employer with an opportunity to demonstrate that its

unlawful misclassification of interpreters is limited to interpreters in a smaller

geographic area. If the Employer fails to establish such geographic limitations, the

92 Case 21-CA-150875, Advice Memorandum dated Dec. 18, 2015.

93 Case 06-CA-162363, Advice Memorandum dated July 22, 2016.

94 Case 18-CA-181821, Advice Memorandum dated Dec. 2, 2016.

95 Cf. Parexel, 356 NLRB at 519–20 (discharge violated Section 8(a)(1) because it was

undertaken to ensure employee did not engage in future Section 7 activity).

92 Case 21-CA-150875, Advice Memorandum dated Dec. 18, 2015.

93 Case 06-CA-162363, Advice Memorandum dated July 22, 2016.

94 Case 18-CA-181821, Advice Memorandum dated Dec. 2, 2016.

95 Cf. Parexel, 356 NLRB at 519–20 (discharge violated Section 8(a)(1) because it was

undertaken to ensure employee did not engage in future Section 7 activity).

Case 21-CA-178096

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Region should seek a nationwide remedy in this case for the Employer’s violation of

Section 8(a)(1).96

As a remedy for the misclassification violation, the Region should seek an order

requiring that the Employer cease and desist from interfering with, restraining, or

otherwise coercing its employees in the exercise of their Section 7 rights by

communicating to its interpreters that they are independent contractors and not

employees within the meaning of the Act. The order should also require that the

Employer take affirmative action to rescind any portions of its ICAs with the

interpreters that purport to classify them as independent contractors and post an

appropriate notice.

/s/

B.J.K.

ADV.21-CA-178096.Response.SOSInternationalLLC.

96 See Menard, Advice Memorandum at 14 n.42 (concluding that a nationwide remedy

was appropriate based on employee testimony from two of the employer’s locations).

(b) (6), (b) (7)(