NLRB Issues Decision Clarifying Employee-Employer Test

In June 2023, the National Labor Relations Board (the "Board") issued a decision clarifying the test used to determine whether a worker is an employee under the National Labor Relations Act ("NLRA") or an independent contractor. The decision is significant because the NLRA provides employees (not independent contractors) with important protections, including forbidding employers from interfering with, restraining, or coercing employees in the exercise of rights relating to organizing, forming, joining or assisting a labor organization for collective bargaining purposes, or from working together to improve terms and conditions of employment.

To determine whether a worker is an employee under the NLRA and entitled to protections, the Board has historically considered a list of non-exclusive common law factors with no one factor being determinative or superior. Those factors include: (i) the extent of control which the potential employer may exercise over the