NLRB To Reconsider Independent Contractor Standard

The notice can be found here.

In its 2019 SuperShuttle DFW, Inc. decision, the Board overruled the prior standard for determining independent contractor status which was set forth in its 2014 ruling in FedEx Home Delivery. The Board held that the FedEx Home Delivery decision impermissibly altered the Board’s traditional common-law test for independent contractors by severely limiting the significance of entrepreneurial opportunity to the analysis. 

In yesterday’s notice, the Board invited the filing of briefs to afford the parties and interested amici the opportunity to address the following questions:

1. Should the Board adhere to the independent-contractor standard in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019)?
2. If not, what standard should replace it? Should the Board return to the standard in FedEx Home Delivery, 361 NLRB 610, 611 (2014), either in its entirety or with modifications?

Chairman McFerran and Members Wilcox and Prouty issued the notice and invitation. Members Kaplan and Ring dissented. The majority rejected the dissent’s position that it is inappropriate for the Board to reexamine its recent precedent in this important area of Federal labor law. According to the majority, “the Board may grant a request for review when compelling reasons support the reconsideration of an important Board policy.” 

Briefs not exceeding 20 pages in length may be filed with the Board in Washington, DC, on or before February 10, 2022. The parties (but not amici) may file responsive briefs on or before February 25, 2022, which shall not exceed 30 pages in length. No other responsive briefs will be accepted. Motions for extensions of time in which to file briefs will not be granted absent compelling circumstances. 

The Arent Fox Labor & Employment Group will continue to follow this issue. If you have any questions about it, please contact the author or the Arent Fox professional who usually handles your matters.