Sarah Block
Fri, 01/07/2022
In a Notice issued on December 28, 2021, the National Labor Relations Board (NLRB) invited both the parties to The Atlanta Opera, Inc. and Make-Up Artists and Hair Stylists Union, Local 798, IATSE, Case No. RC-276292, and the public to submit briefing regarding whether the NLRB should reconsider its standard for determining whether an individual worker is an “independent contractor” and thus not covered by federal labor laws.
Specifically, the NLRB seeks input on whether to adhere to its current standard, adopted under the Trump administration in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), or to reinstate its previous standard set forth in FedEx Home Delivery, 361 NLRB 610, 611 (2014). Significantly, the SuperShuttle decision benefited employers seeking to avoid liability under federal labor laws by emphasizing workers’ “entrepreneurial opportunity,” whereas the previous FedEx standard rejected the notion that “significant entrepreneurial opportunity for gain or loss” is a “decisive factor” in the independent contractor test.
The NLRB’s invitation to review the standards for determining whether a worker is an “independent contractor” and the significance of a worker’s “entrepreneurial opportunity” reflects the nation’s fast-growing gig economy and the important questions which have arisen regarding the labor and employment rights of gig economy workers. Notably, companies like Uber and Lyft, among many others, have long considered their workers to be “independent contractors” and not “employees.” Thus, should the NLRB reinstate the independent contractor test announced in FedEx or a modified version of that standard, it will greatly impact the status of thousands of gig economy workers nationwide.
If you have questions about whether you are covered by federal labor laws or believe you have been wrongly misclassified as an “independent contractor” and been denied the pay or benefits you are lawfully owed, please contact MSE by submitting our online form.
