NLRB to Reconsider Trump-Era Independent Contractor Test

In an announcement made December 27, the National Labor Relations Board (NLRB)  announced it will reconsider a Trump-era legal test for assessing whether a worker is classified as an employee or an independent contractor for the purposes of protections under the National Labor Relations Act.

Given the new liberal majority of the body, the NLRB seems poised to revert to a more worker-friendly standard for determining independent contractor or employee status. Given the advertising industry’s continued reliance on freelance talent for flexible project-based staffing solutions, agencies may be interested in following these developments to help them understand possible changes to federal labor laws and liability concerning proper worker classification.
Specifically under review is the Trump NLRB’s 2019 SuperShuttle decision, which gave employers more of an advantage by emphasizing workers’ “entrepreneurial opportunity” for economic gain when determining their employment status. That factor had been severely limited by a 2014 ruling involving FedEx Corp., which was handed down by a Democratic-majority board during the Obama Administration. Stakeholders have until February 10 to weigh in via legal briefs on whether the NLRB should keep the SuperShuttle test, return to the FedEx test, or replace it with something else.

What the NLRB is pursuing is separate from a possible new definition of independent contractor status that could come out of the Wage and Hour Division of the Department of Labor later in 2022.

For more information, please contact Alison Pepper at [email protected].