NLRB Considers New Independent-Contractor or Employee Test

On December 27, 2021, the National Labor Relations Board (“NLRB”) invited public comment on whether it should abandon its current test for determining whether a worker is an employee protected by federal labor laws or an independent contractor.

            The legal test for determining a workers’ employment status is crucial for gig economy companies such as Uber and other businesses who use independent contractors to avoid the cost of hiring employees. The current test considers a list of 10 non-exhaustive factors for determining a worker’s employment status. These factors include the level of control, the method of payment, and the amount of supervision.

The NLRB invited interested parties to weigh in on whether it should overrule its 2019 decision in SuperShuttle DFW, which held that shuttle-van-driver franchisees were not employees under the National Labor Relations Act and therefore fell outside of the law’s coverage. The NLRB in SuperShuttle DFW found that its previous decision in FedEx Home Delivery diluted the importance of a worker’s “entrepreneurial opportunity for gain or loss” as a factor in the test.   

The NLRB has now invited public comment to determine whether it should abandon SuperShuttle DFW and return to the standard in FedEx Home Delivery, which viewed the workers’ “entrepreneurial opportunity for gain or loss” as a broader factor that considers the employer’s constraints on a worker’s ability to render services as part of an independent business, rather than a decisive factor pointing toward independent contractor status.    

Until the Board considers the public comments of all interested parties and comes to a decision, workers seeking to act together to improve working conditions in gig economy companies should consult an experienced employment & labor law attorney. Should you have any questions, please do not hesitate to contact our team of professionals.



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