It has been the source of speculation for some time that the standard for determining whether a worker is correctly classified as an employee or an independent contractor will soon be revised. On December 27, 2021, the National Labor Relations Board (“NLRB” or “Board”) confirmed that it is now seeking public comment on whether it should abandon the current standard for making that determination. This input is being sought as the NLRB evaluates in the pending action of NLRB No. 10-RC-276292 (2021) whether makeup artists, wig artists, and hairstylists working for the Atlanta Opera are employees or independent contractors.
The standard currently applied in making that analysis was articulated in the case of SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), in which the Board utilized the common-law agency test for determining whether a worker is an employee or an independent contractor. This test considers the following factors under the totality of the circumstances:
Before the SuperShuttle decision, the NLRB utilized the standard set forth in the case of FedEx Home Delivery, 361 NLRB 610 (2014), which relied upon entrepreneurial opportunity for economic gain rather than economic dependency as the standard for this analysis. Parties interested in weighing in on whether the Board should revert to the prior, more worker-friendly standard are invited to file briefs articulating their position on this issue on or before February 10, 2022.
Stay tuned as this standard continues to evolve, both within the NLRB and within the United States Department of Labor, which continues to express its intent to clarify the definition of what constitutes an independent contractor. It is evident that both agencies are laser-focused on preventing companies from improperly classifying employees as independent contractors to dodge responsibilities they owe to their employees under the Fair Labor Standards Act and other federal laws. It is recommended that employers remain vigilant in enforcing sustainable employment practices.
If you have questions about this agency action or any other employment-related matter, please call Connie Carrigan at (919) 250-2119 or e-mail her at firstname.lastname@example.org.
Connie Elder Carrigan is a partner in the firm, with a practice concentration in Business Law. Her focus is assisting clients with issues regarding employment law, business advice and litigation, construction law, equipment leasing and creditor bankruptcy. Connie has lectured on topics ranging from employment law, bankruptcy, and equipment leasing to construction law....LEARN MORE