NLRB Independent-Contractor Returns Standard

On Jan. 25, in a 3-1 ruling, the National Labor Relations Board (NLRB) returned to its long-standing independent-contractor standard—essentially reversing an Obama-era decision that made it harder for employers to classify workers as independent contractors, and reaffirmed the NLRB’s adherence to the traditional common-law test. In the ruling, titled SuperShuttle DFW, Inc., NLRB effectively overturned its 2014 decision in FedEx Home Delivery, holding that members of a group of franchisee shared-ride van drivers are independent contractors. ​

The NLRB’s Republican majority wrote that the Obama-era FedEx case “significantly limited the importance of entrepreneurial opportunity by creating a new factor (‘rendering services as part of an independent business’) and then making entrepreneurial opportunity merely ‘one aspect’ of that factor.” Instead, the board reverted to an earlier common-law test that weighs, among other factors, the length of time a person is employed, the skills required to do the job and whether the contracted work is part of the company’s regular business.

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