NLRB Refines Its Test For Independent Contractor Status

The National Labor Relations Board, with one member dissenting, has issued a decision in which it "refines" the test it uses for determining whether it will find individuals performing services for an employer to be employees, who are covered by the National Labor Relations Act, or independent contractors, who are not.  The case is FedEx Home Delivery, 361 NLRB No. 55 (2014). This is an important decision because of its broad application in determining the status of workers in both representation cases and in unfair labor practice cases as well.

In the decision, the NLRB found drivers for the company to be employees, not independent contractors.  The overriding issue in the case involved the proper role of evidence on the issue of whether the drivers possessed the "entrepreneurial opportunity for gain or loss" that would be the hallmark of an independent business, and how that factor should be evaluated in light of the other traditional factors considered by the