NLRB Brings Back Independent Contractor Test

By Patrick Scully

In a case handled by Sherman & Howard’s Labor and Employment Department, the National Labor Relations Board (“NLRB”) returned to its traditional independent contractor test, reversing the Obama Board’s 2014 decision in FedEx Home Delivery, 361 NLRB 610, and finding the Dallas/Ft. Worth SuperShuttle franchisees to be independent contractors.  The Board explained that the FedEx decision improperly minimized the consideration of whether alleged independent contractors had significant “entrepreneurial opportunity” for gain and loss.  In addition, the Board clarified that regulatory requirements imposed on the SuperShuttle franchisees could not be considered “control” asserted by the alleged employer.  The Board concluded that in light of the franchisees’ ownership and control over their vans, their near complete freedom to independently control their schedules and accept or reject work, the absence of supervision, and the franchisees’ significant entrepreneurial opportunity, they could not be considered employees covered by the National Labor Relations Act.  In a strongly-worded dissent, Member McFerran quipped “calling the SuperShuttle drivers ‘entrepreneurs’ or ‘small business owners’ doesn’t make them any less employees.” We respectfully disagree with the dissent.

SuperShuttle DFW, Inc. and ATU Local 1338, 367 NLRB No. 75 (January 25, 2019).