NLRB “Resets” Independent Contractor Test

On January 25, 2019, the National Labor Relations Board (NLRB) issued a decision in SuperShuttle DFW, Inc., which walked back an earlier, controversial decision that altered the common law independent contractor test and made it more difficult for employers to prevail when an independent contractor classification was challenged. That decision, FedEx Home Delivery (2014), was held by the NLRB in SuperShuttle to have improperly limited the factor relating to the operation or provision of services by an independent business, holding that this was merely “one factor” in the analysis.

Although independent contractor status remains one of the most hotly litigated employment law matters, and numerous states enforce their own standards that are more difficult to meet for employers than those provided under federal law or the NLRB, this decision takes some pressure off of employers who may find themselves litigating such a dispute before the NLRB. In addition to the joint-employer rule, the comment period for which was recently extended once more, independent contractor analyses are likely to continue to be a hot topic.