MONTH-IN-BRIEF (Feb 2019)
NLRB Reinstates Independent Contractor Standard
By Meagan Bainbridge, Weintraub, Tobin, Chediak, Coleman, Grodin Law Corporation
As expected, the National Labor Relations Board (NLRB) recently reinstated the traditional common-law agency test for determining independent contractor status for certain classes of works. In SuperShuttle Inc. DFW, Inc., the NLRB determined a group of franchisee drivers for SuperShuttle DFW were independent contractors. In doing so, the NLRB was swayed by entrepreneurial opportunity provided to the drivers, including through their ability to control their work conditions and hours, their entitlement to all fares and tips earned, their ownership of the tools used for their work, and their ability to set their own hours and working conditions. This decision overrules the NLRB’s 2014 Decision, FedEx Home Delivery, 361 NLRB No. 65, which had modified the NLRB’s independent contractor test to limit the emphasis placed on the extent of the entrepreneurial opportunity provided by a particular position. The SuperShuttle decision expands the definition of the independent contractor test under the National Labor Relations Act (NLRA), and continues the NLRB’s recent trend of employer-friendly decisions.