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On December 27, 2021, the National Labor Relations Board (“NLRB”) invited public briefing on a critical issue affecting employers (and especially gig economy companies and workers) regarding independent contractor status. In 2019, the republican-controlled NLRB in
SuperShuttle DFW, Inc., 367 NLRB 75 (2019), made it easier for employers to prove independent contractor status by reaffirming adherence to the NLRB’s traditional common law agency test. In
SuperShuttle, the NRLB found that entrepreneurial opportunity for economic gain is a relevant factor to show a putative contractor is rendering services as part of an independent business. This overruled the prior standard contained in
FedEx Home Delivery, 361 NLRB 610 (2014), which made it more difficult to prove independent contractor status. The NLRB’s request for public briefing on the issue is part of a pending case involving makeup artists, wig artists and hairstylists at the Atlanta Opera, Inc., who are attempting to unionize. Given the current democratic board majority, it is possible that in 2022 the NLRB independent contractor test may revert back to the
FedEx test and overrule the existing
SuperShuttle test. The Frantz Ward Labor and Employment Group will continue to monitor and report on these developments.