Tag: NLRB

NLRB May Abandon Present Standard for Determining Employee vs. Independent Contractor Status In a decision that is sure to have an enormous impact on how "gig" workers are classified, the National Labor Relations Board (NLRB) appears to be considering reverting to a standard that favors workers in determining employee or independent contractor classification. This started when the NLRB invited the public to file briefs on December 27th, 2021, regarding whether or not the current standard for classification as an employee or independent contractor under the National Labor Relations Act (NLRA) should be abandoned. The case in question regards an employer's request for the NLRB to review a determination that certain of its workers, including makeup artists and hairstylists, are employees rather than independent contractors. Due to the importance of the issue, the Board chose to invite interested amici to provide input regarding two questions: "Should the Board adhere to the independent-contractor standard in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019)?; 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?" In the first of these cases, the NLRB had chosen to return to its traditional agency test under common law to determine a worker's classification. This overturned the decision made in 2014 in the case of "FedEx Home Delivery." The test which the NLRB currently uses considers these factors within the totality of the circumstances: The extent of control which, by the agreement, the master may exercise over the details of the work Whether or not the one employed is engaged in a distinct occupation or business The kind of occupation, concerning whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision The skill required in the particular occupation Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work The length of time for which the person is employed The method of payment, whether by the time or by the job Whether or not the work is part of the regular business of the employer Whether or not the parties believe they are creating the relation of master and servant Whether the principal is or is not in the business With the case of "SuperShuttle," the NLRB found that the decision in the earlier case disregarded the importance of "entrepreneurial opportunity" in determining a worker's classification and had brought back the standard of "economic dependency" when determining the NLRB's analysis. Due to this newer standard, employers were capable of emphasizing "entrepreneurial opportunity" in their classifications of employees. Now the Board has voted to invite public discourse in a 3-2 split. Those opposed to the matter allege that there is no reason to revisit the matter given that neither party has requested the Board to in any way modify the precedent, nor has a situation occurred since then to warrant such a change. However, the Board's majority claims that on previous occasions, Board majorities have chosen to overrule precedents on their own initiative and even reverse precedents without the presence of adverse judicial decisions. For those amici interested in e-filing a brief, they may submit one no more than 20 pages long by Thursday, February 10th, 2022. Learn more about keeping compliant with fair chance hiring practices with Pre-employ’s free guide on 5 Tips To Avoid FCRA Non-Compliance. STAY COMPLIANT WITH YOUR BACKGROUND CHECKS

Tag: NLRB

NLRB May Abandon Present Standard for Determining Employee vs. Independent Contractor Status

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