The National Labor Relations Board (NLRB) is returning to its long-standing traditional common law test. The business-friendly decision relates to whether an individual should be classified as an employee or an independent contractor, and became official on January 25, 2019 when the NLRB revised its independent contractor test by overturning a prior 2014 decision.
The decision stems from the SuperShuttle DFW, Inc. case that involved shuttle-van driver franchisees of SuperShuttle at Dallas-Fort Worth Airport. The NLRB found that the franchisees were independent contractors and not employees, and therefore did not have the protection under the National Labor Relations Act (NLRA) to unionize and engage in collective bargaining. In support of their decision, the NLRB balanced the traditional ten common law factors and noted that the franchisees leased or owned their vans, had control over their work schedules and working conditions, and noted the absence of supervision over the franchisees. The NLRB highlighted that these factors demonstrated entrepreneurial opportunity for economic gain, which triggered independent contractor status under the NLRA.
The recent decision struck down the prior refinement to the common law independent contractor test made in the 2014 FedEx Home Delivery case. In doing so, the NRLB placed significance back into the idea of entrepreneurial opportunity.
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