Democrat-led NLRB Eyes New Independent Contractor And Joint Employer Tests

The Board announced on December 27 that it wanted input from unions, employers, and others on whether to keep or replace the current independent contractor test established just two years ago in SuperShuttle DFW, 367 NLRB No. 75 (Jan. 25, 2019) (prior analysis here).  In SuperShuttle DFW, the then Republican-majority Board held that a key factor in the independent contractor test should focus on whether a worker has an "entrepreneurial opportunity" for profit or loss and not on whether the worker was, in fact, rendering services as part of an independent business, as the Board under President Obama had decided in FedEx Home Delivery, 361 NRLB 610 (2014).  By reversing the Obama Board's decision, SuperShuttle DFW returned to the independent contractor test it used without changes since the Supreme Court decided NLRB v. United Insurance Co. of America, 390 U.S. 254, in 1968.  

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