The National Labor Relations Board is seeking public input regarding the definition of an independent contractor, ahead of a ruling poised to impact federal protections under the National Labor Relations Act.
Under the act, an independent contractor cannot be part of a union or attempt to remedy any alleged violations under the act.
In a December 2021 order, the NLRB invited the public to electronically file amicus briefs as the board revisits the current standard for determining if a worker is properly classified as an independent contractor or is considered an employee under the NLRA.
The case in question involves whether workers who serve as makeup artists, wig artists, and hairdressers, are employees of The Atlanta Opera, Inc. or independent contractors.
The board posed two questions to the public.
- Should the board adhere to the independent-contractor standard in SuperShuttle DFW, Inc.,367 NLRB No. 75 (2019)?
- If not, what standard should replace it? Should the board return to the standard in FedEx Home Delivery, 361 NLRB 610, 611 (2014), either in its entirety or with modifications?
In 2019, the board returned to the traditional common-law agency test for defining an independent contractor, in SuperShuttle DFW, Inc.
That overturned the 2014 board decision from FedEx Home Delivery.
Under the 2019 test, currently in place, the test to determine an independent contractor considers a number of factors under the totality of the circumstances:
- The extent of control which, by the agreement, the master may exercise over the details of the work.
- Whether or not the one employed is engaged in a distinct occupation or business.
- The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.
- The skill required in the particular occupation.
- Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work.
- The length of time for which the person is employed.
- The method of payment, whether by the time or by the job.
- Whether or not the work is part of the regular business of the employer.
- Whether or not the parties believe they are creating the relation of master and servant.
- Whether the principal is or is not in business.
Briefs submitted to the board should not exceed 20 pages in length, and must be submitted by Thursday, Feb. 10, 2022.