On January 25, 2019, the National Labor Relations Board flopped again in SuperShuttle DFW, Inc., reinstating the pre-2014 common law agency test for determining independent-contractor status (overruling FedEx Home Delivery). Why is this important if you are not a unionized employer? Well, the National Labor Relations Act (NLRA) does not require the same protections to independent contractors as it does for employees (and even employees who are not unionized have NLRA protections). For example, Section 7 of the NLRA gives employees the right to self-organize, engage in union actives, and engage or refrain from protected concerted activities. Because the NLRA excludes independent contractors from the definition of employee, Section 7 rights are not applicable to independent contractors, nor are the protections that the NLRA affords to employees.
Under the common law agency test, the Board considers factors such as the extent of control the employer exerts over the individual’s work, the skill required in the position, and/or who provides the work supplies. None of the common law factors are decisive, and “all incidents of the relationship must be assessed and weighed.” The Board held, “going forward we will continue to consider how the evidence in a particular case, (viewed as it must be) in light of all the common-law factors, reveals whether the workers at issue possess entrepreneurial opportunity. Funny enough, the Board noted (in a footnote), that cases in this area have not been, “entirely consistent.” Who said judge’s don’t have sense of humor!