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NLRB Returns to Long Standing Independent Contractor Standard That Gives Signifcant Weight to "Entrepreneurial Opportunity"


At the end of last month, the National Labor Relations Board ("NLRB") issued a much anticipated decision in SuperShuttle DFW, Inc. in which the NLRB reverted to its long standing independent contractor standard, favoring the traditional common law standard.  (The common law standard is derived from the 1958 version of the Restatement of Agency, a treatise that provides ten non-exhaustive factors for determining whether a worker is an independent contractor or employee.  These ten factors include the level of control a business exerts over a worker, the method of payment, and the amount of supervision of the worker, among other factors).  The decision in SuperShuttle DFW, Inc. overruled a President Barack Obama era 2014 NLRB decision in FedEx Home Delivery in which the NLRB had severely modified the applicable test for determining independent contractor status by limiting the significance of a worker's entrepreneurial opportunity for economic gain.

In this particular case, the dispute centered around shuttle/van drivers of SuperShuttle at the Dallas Fort Worth Airport and whether they were independent contractors or employees.  In the 3 - 1 decision, the NLRB noted that the workers leased or owned their work vans and had nearly unfettered control over their daily work schedules and work conditions.  These working conditions provided the workers with significant opportunity for economic gain.  Coupling these factors along with the fact that there was an absence of supervision over the workers (and a mutual understanding that the workers were independent contractors), led the NLRB to find that the workers were not employees under the National Labor Relations Act ("NLRA").  (Under the NLRA, only employees are covered whereas independent contractors are not.  Readers will recall that the NLRA provides employees the right to unionize and engage in collective bargaining).

The sole NLRB Member that dissented was Lauren McFerran who wrote that the three member majority in this decision had no evidence to support the contention that entrepreneurial opportunity was at the center of the common law test for agency.  However, it is worth noting that the 3 - 1 majority decision in this case puts the NLRB in line with a 2017 decision from the United States Court of Appeals for the District of Columbia Circuit which had overruled the NLRB's FedEx Home Delivery case.  In the Circuit Court's opinion, the Court found that the delivery drivers were independent contractors.


For a copy of the NLRB's decision:  apps.nlrb.gov/link/document.aspx/09031d4582a96a9c

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