NLRB overturns independent contractor test

The National Labor Relations Board has returned to a previous standard for evaluating the status of independent contractors versus employees.

In the SuperShuttle DFW Inc. case, which involved shuttle-van-driver franchisees of SuperShuttle at the Dallas-Fort Worth Airport, the board concluded that the franchisees are not statutory employees under the National Labor Relations Act, but rather independent contractors excluded from the law’s coverage, according to an NLRB statement on Friday.

The board found that “the franchisees’ leasing or ownership of their work vans, their method of compensation and their nearly unfettered control over their daily work schedules and working conditions provided the franchisees with significant entrepreneurial opportunity for economic gain,” according to the statement.

These factors, along with the absence of supervision and the parties’ understanding that the franchisees are independent contractors, resulted in a decision that affirms the acting regional director’s finding that the franchisees are independent contractors.

The NLRB decision overrules FedEx Home Delivery, a 2014 NLRB decision that modified the applicable test for determining independent-contractor status by severely limiting the significance of a worker’s entrepreneurial opportunity for economic gain, according to the statement.

NLRB chairman John Ring was joined by members Marvin Kaplan and William Emanuel in the majority opinion while member Lauren McFerran dissented.