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Breaking: NLRB Overturns Its Previous Independent Contractor Standard

Nicholas J. Golding, Labor and Employment Law Attorney, KDDK

Nicholas J. Golding, Attorney

The National Labor Relations Board (“Board”) announced today that it is overturning a controversial Obama-era decision and returning to its previous independent contractor standard.

In SuperShuttle DFW, Inc., the Board ruled against shuttle van drivers’ attempts to unionize at Dallas-Fort Worth airport.  The Board analyzed factors such as ownership of vehicles, method of compensation, and uncompromised control over daily schedules and work conditions, and reaffirmed the importance that entrepreneurial opportunity plays in the determination of independent contractor status.  Applying this approach, the Board concluded that franchisees such as SuperShuttle are independent contractors excluded from the National Labor Relations Act (“Act”), not statutory employees that would fall under the Act’s purview.

The Board’s holding overrules its 2014 decision FedEx Home Delivery, which discarded the traditional common-law independent contractor test in favor of a loosened standard that made it easier for workers to be considered employees afforded full benefits and protections under the Act.

This reversion to the pre-FedEx standard benefits companies that prefer to use independent contractors.  Hiring independent contractors should no longer bring with it the associated expenses and legal liability that had afflicted employers following the 2014 FedEx decision.

For additional information on this or any related topic, please attorney Nick Golding at ngolding@KDDK.com or (812) 423-3183, or contact a member of the KDDK Labor and Employment Law Practice Team.

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