NLRB Reconsiders Independent Contractor Test – Again

Clifford Geiger
Clifford Geiger

In The Atlanta Opera, N.L.R.B., Case 10-RC-276292, the National Labor Relations Board is primed to reconsider its 2019 decision in SuperShuttle DFW, N.L.R.B., Case 16-RC-010963.  The decision in SuperShuttle, a case involving ride-share franchisees, made it easier for companies to establish that their workers are independent contractors (and not employees) by clarifying and emphasizing that classification as an independent contractor is strongly indicated when a worker has significant entrepreneurial opportunity for economic gain. 

The distinction between independent contractors and employees is important because (1) employees, but typically not contractors, are protected by state and federal labor laws, and (2) many companies, including those involved in the gig economy, rely on contractor labor to reduce costs associated with supplying employee job benefits and paying employment taxes.  So, for example, The Atlanta Opera involves a union’s petition to represent a group of makeup artists, wig artists, and hair stylists, and whether those workers are employees, in which case they would have the legal right to organize under the Nation Labor Relations Act.

The Democratic-controlled NLRB decided to reconsider the two-year-old SuperShuttle decision, because “important reasons support the reconsideration of an important Board policy.”  In addition to argument from the parties, the NLRB invited public participation and briefing in the case to determine whether the Board should adhere to the independent contractor standard in SuperShuttle, and if not, what standard should replace it.

Perhaps not coincidentally, SuperShuttle, decided by a Republican controlled Board, effectively reversed the significance of “entrepreneurial opportunity” to the classification analysis established in FedEx Home Delivery, 361 N.L.R.B. 610 (September 30, 2014), an Obama-era decision. 


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