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NLRB Returns To Former Independent Contractor Standard

Volume 18, Issue 3
February 04, 2019

Many employers use independent contractors for a variety of reasons. Independent contractors are not covered by the National Labor Relations Act ("NLRA"). As such, determining whether an individual is an independent contractor or an employee is a critical issue for employers and unions before the National Labor Relations Board ("Board").

Under the Obama Board, the independent contractor test was altered to make it harder for employers to establish lawful independent contractors. On January 25, 2019, the Board issued an important decision in SuperShuttle DFW, Inc., overruling the Obama's Board's modifications from FedEx Home Delivery (2014) and returning Board law to its former, long-standing independent contractor standard.

This is good news for employers. The Board has returned to the traditional 10 factor common-law test used in most jurisdictions, giving employers greater assurance of consistent results before the courts and the Board. Moreover, the Board has removed some of the restrictions on the test that made it difficult to create lawful independent contractors.

Using independent contractors remains a tricky area in labor and employment law that must be approached carefully. However, the Board's decision has greatly improved an employer's chance of success under the NLRA. If you would like more information about the independent contractor analysis or this case, please contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.