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The NLRB Takes Another Look At The Trump Administration Independent Contractor Standard

By Doug Schnee on December 28, 2021
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On December 27, 2021, the National Labor Relations Board (“NLRB”) invited public briefing on a critical issue affecting employers (and especially gig economy companies and workers) regarding independent contractor status. In 2019, the republican-controlled NLRB in SuperShuttle DFW, Inc., 367 NLRB 75 (2019), made it easier for employers to prove independent contractor status by reaffirming adherence to the NLRB’s traditional common law agency test. In SuperShuttle, the NRLB found that entrepreneurial opportunity for economic gain is a relevant factor to show a putative contractor is rendering services as part of an independent business. This overruled the prior standard contained in FedEx Home Delivery, 361 NLRB 610 (2014), which made it more difficult to prove independent contractor status. The NLRB’s request for public briefing on the issue is part of a pending case involving makeup artists, wig artists and hairstylists at the Atlanta Opera, Inc., who are attempting to unionize. Given the current democratic board majority, it is possible that in 2022 the NLRB independent contractor test may revert back to the FedEx test and overrule the existing SuperShuttle test. The Frantz Ward Labor and Employment Group will continue to monitor and report on these developments.

Photo of Doug Schnee Doug Schnee

Doug focuses his practice on employment litigation and counseling on human resource issues. His employment litigation experience includes representing employers before state and federal courts and administrative agencies in Ohio and throughout the region in wrongful termination, retaliation and discrimination matters arising under…

Doug focuses his practice on employment litigation and counseling on human resource issues. His employment litigation experience includes representing employers before state and federal courts and administrative agencies in Ohio and throughout the region in wrongful termination, retaliation and discrimination matters arising under the Ohio Civil Rights Act, the Americans with Disabilities Act (ADA), Title VII, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and the Family and Medical Leave Act. Doug is also experienced in litigating matters involving employment and non-compete agreements. Doug also served as a judicial law clerk to Judge Stephen R. Shaw in the Court of Appeals of Ohio, Third Appellate District.

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  • Posted in:
    Employment & Labor
  • Blog:
    Labor & Employment Law Navigator
  • Organization:
    Frantz Ward LLP
  • Article: View Original Source

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