NEW CASE: NLRB Changes Its Independent Contractor Test

In a recent decision (SuperShuttle DFW, Inc.), the NLRB has overruled a 2014 decision (FedEx Home Delivery) and reinstated the common law independent contractor test as the standard the NLRB will use when evaluating whether an independent contractor is properly classified.

In its 2014 FedEx Home Delivery decision, the NLRB had issued a new independent contractor test decided that, in determining whether an individual is an independent contractor or an employee, “entrepreneurial opportunity represents merely ‘one aspect of a relevant factor that asks whether the evidence tends to show that the putative contractor is, in fact, rendering services as part of an independent business.’”

 This new decision (SuperShuttle DFW, Inc.), the NLRB has returned to the common law test to determine whether an individual is an independent contractor (and thereby not a covered individual for purposes of the NLRA).  These factors include:

  • the extent of control which, by the agreement, the master may exercise over the details of the work;
  • whether or not the one employed is engaged in a distinct occupation or business;
  • the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
  • the skill required in the particular occupation;
  • whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
  • the length of time for which the person is employed;
  • the method of payment, whether by the time or by the job;
  • whether or not the work is part of the regular business of the employer;
  • whether or not the parties believe they are creating the relation of master and servant; and
  • whether the principal is or is not in business.