In 2014, the NLRB established a multi-factor test in FedEx Home Delivery, 361 NLRB No. 610 (2014) (FedEx II) based on its existing common law agency approach. Under this test, the following factors were weighed, with no one factor being decisive:
-
Who controls the details of the work;
-
Whether the work performed a distinct occupation or business;
-
Whether the work being performed typically done under the supervision of an employer;
-
Whether the work requires special skill;
-
Who supplies the tools or equipment;
-
The length of the engagement;
-
Whether compensation is based on time spent or completion of a job;
-
Whether the employer is in the business of work that is performed;
-
Whether the parties believe they have created an independent contractor relationship; and
-
Whether the employer is in business.
In SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), the Trump Board held that entrepreneurial opportunity for gain or loss is the primary factor (animating principle), analyzed under factor #2, of the independent contractor test. Although other enumerated factors, as well as some non-enumerated factors, were still maintained in the court's analysis, entrepreneurial opportunity for gain and loss became all but decisive.
The NLRB's June 13 decision in The Atlanta Opera "reaffirm[ed] the Board’s commitment to the core common-law principles that the Supreme Court has determined should guide the Board’s consideration of questions involving employee status," said NLRB Chairman Lauren McFerran. Entrepreneurial opportunity for gain and loss remains a factor, but without any special weight to it, reestablishing the Obama Board standard. No one factor will be decisive, and the Board will consider all factors when determining whether an individual is an employee or an independent contractor, aligning with U.S. Supreme Court precedent (United Insurance, 390 U.S. 254 (1968)) holding “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.”
Authored by Kenneth Kirschner, Zachary Siegel, and Nicholas Lauridsen.
