NLRB Revises Employee Classification Test

On January 25, 2019, in SuperShuttle DFW, Inc. and Amalgamated Transit Union Local 1338, Case 16–RC–010963, the National Labor Relations Board (NLRB or Board) overturned its 2014 decision in FedEx Home Delivery and International Brotherhood of Teamsters, Local Union No. 671, 361 NLRB No. 55 (Sept. 30, 2014), holding that the 2014 decision impermissibly altered the common-law employee classification test by limiting the importance of entrepreneurial opportunity (i.e., whether a role presents the opportunities and risks inherent in entrepreneurialism). In FedEx Home Delivery, the NLRB declined to adopt the traditional common-law employee classification test previously articulated in FedEx Home Delivery v. NLRB, 563 F.3d 492 (D.C.Cir. 2009), and found that the U.S. Court of Appeals for the District of Columbia Circuit’s test disproportionately emphasized the entrepreneurial opportunity of workers without due consideration of the constraints that a company may place