NLRB REVERSES OBAMA-ERA INDEPENDENT CONTRACTOR TEST

During the Obama administration, the NLRB overturned 92 traditional NLRB doctrines.  The current Trump administration's NLRB is in the process of attempting to reverse the Obama-era rulings, thus going back to the prior doctrines.  The latest example occurred in the January 25 ruling of the NLRB in Super Shuttle DFW, 16-RC-010963 (1/25/19).  The latest ruling involves shuttle-van-driver franchisees in the Dallas-Fort Worth airport.  Only employees are covered by the Labor Act, which provides them the right to unionize and engage in concerted activities.  The Board during the Obama administration had particularly limited the use of independent contractors in its ruling that Federal Express Home Delivery drivers were not independent contractors, a ruling that was overturned by the District of Columbia Court of Appeals.  In the recent ruling, the NLRB used the common-law test drawn from the Restatement of Agency, a legal treatise that names 10 factors to consider to determine whether a worker is an independent contractor or employee.  Those factors include, among other things, the level of control the business exerts over a worker, the method of payment, and the amount of supervision involved in the job.  The current ruling emphasizes that the Board should "evaluate the common-law factors through the prism of entrepreneurial opportunity when the specific factual circumstances of the case make such an evaluation appropriate."  The current Board ruling was 3-1, broken down between Trump administration appointees and the sole remaining Obama administration appointee.

NLRB Chairman John Ring recently stated that the NLRB may propose a new regulation to resolve the resolution of the issue as between independent contractors and employees.  The Board has already proposed a related rule dealing with the joint employment issue.