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ARTICLE · 11 JULY 2023

NLRB Modifies Its Independent Contractor Standard

Berman Fink Van Horn P.C.
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The National Labor Relations Board ("NLRB") has modified its Independent Contractor Standard under the National Labor Relations Act ("NLRA"). It is now harder for an employer to classify an individual...

United StatesEmployment and HR
Kenneth N. Winkler
Kenneth N. Winkler
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The National Labor Relations Board ("NLRB") has modified its Independent Contractor Standard under the National Labor Relations Act ("NLRA"). It is now harder for an employer to classify an individual as an independent contractor under the NLRA.

BOARD RE-AFFIRMS PRIOR STANDARD

In its June 13, 2023 decision in The Atlanta Opera, Inc., the NLRB re-affirmed its 2014 FedEx Home Delivery ("FedEx II") standard for determining independent contractor status under the NLRA. It overruled its prior standard under SuperShuttle (2019) placing emphasis on "entrepreneurial opportunity." It also focused on whether there was an opportunity for profit or loss. Now, under the restated Fedex II standard, the entrepreneurial opportunity is just one of many factors to consider.

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