NLRB Modifies The Independent Contractor Standard

In its new decision regarding The Atlantic Opera, Inc., the National Labor Relations Board (NLRB) has overturned its 2019 SuperShuttle decision, which set a standard for determining independent contractor status under the National Labor Relations Act. By overturning SuperShuttle, the NLRB returns to the standard set by FedEx Home Delivery II in 2014. Notably, entrepreneurial opportunity for gain or loss will no longer be the "animating principle" of the NLRB's independent contractor test.

When determining independent contractor status, a non-exhaustive list of common law factors are considered. These factors include, but are not limited to:

• the level of control the employer may exercise over the details of the work