Independent Contractor Law Clarified By NLRB

In two long awaited decisions, the National Labor Relations Board attempted to clarify who is an "employee" and who is an "independent contractor" under the National Labor Relations Act ("NLRA"). This question is important because under the NLRA employees are protected when they attempt to organize into unions, but independent contractors are not.

In Dial-A-Mattress Operating Corp., and Roadway Package System, Inc., the Board held that it lacked authority to depart from the traditional test of independent contractor status. It found that no increased weight should be given to any particular factor, rejecting interpretations from previous decisions that appeared to give particular emphasis to the "right to control" factor.