NLRB May Revise the Definition of Independent Contractor

Allen Smith, J.D. By Allen Smith, J.D. January 5, 2022

​The National Labor Relations Board (NLRB) announced it may replace the existing standard for who is an independent contractor, inviting briefs on the considered change to be filed by Feb. 10. We've gathered articles on the news from SHRM Online and other outlets.

Standard Revisited

In a notice issued in The Atlanta Opera Inc. case, the NLRB invited briefs on whether the board should continue to follow the independent-contractor standard set out in a 2019 decision during the Trump administration. The board also asked whether it should return to a 2014 Obama-era standard in its entirety or with modifications.


Prior NLRB Decisions

In the 2019 SuperShuttle DFW Inc. decision, the board overturned a 2014 NLRB decision that made classification as an independent contractor harder to achieve. Unlike employees, independent contractors are not protected by the National Labor Relations Act. The 2019 standard took into account a variety of factors, including the relationship a company and individual think they are creating and how much control the company has over the person's work. Under the 2014 test, if the worker was economically dependent, that worker likely would have been found to be an employee rather than an independent contractor, noted David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis.

(SHRM Online)

SuperShuttle Decision Targeted by NLRB General Counsel

The SuperShuttle DFW Inc. decision is one of 40 targeted by NLRB General Counsel Jennifer Abruzzo. Other decisions she wants reconsidered include Velox Express Inc., which held that employers don't violate federal labor law by misclassifying employees as independent contractors, and The Boeing Co., which created a new framework for judging employer handbook policies.

(Bloomberg Law)

Entrepreneurial Opportunity

The SuperShuttle decision gave employers a boost by emphasizing workers' "entrepreneurial opportunity" for economic gain when determining their employment status. That factor had been limited by the 2014 decision issued during the Obama administration. The test for employment status is a crucial issue for gig economy companies and other businesses that rely on contract labor.

(Bloomberg Law)

The Atlanta Opera Case

The Atlanta Opera Inc. case involved a union campaign by makeup artists and hairstylists for the Atlanta Opera. An NLRB regional director said in June the workers were the opera's employees. The union is an affiliate of the International Alliance of Theatrical Stage Employees.




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