On September 30, 2014, the NLRB rejected the opinion of the District of Columbia Circuit in FedEx Home Delivery v. NLRB, 563 F.3d 492 (D.C. Cir. 2009) and found that an individual’s entrepreneurial opportunity for gain or loss IS NOT an animating factor in determining whether that individual is an independent contractor. Accordingly, the NLRB found that FedEx Home Delivery’s Hartford, Connecticut drivers are employees eligible to be organized by the International Brotherhood of Teamsters. FedEx Home Delivery, 361 NLRB No. 55 (September 30, 2014). Although the NLRB majority indicated that entrepreneurial freedom “remains a relevant consideration”, it appears that this NLRB has no intent of considering such freedom as a counterweight to what the NLRB regards as “employer control” in these circumstances. Given that the NLRB generally concludes that business contracts entered into by independent contractors are evidence of “pervasive control” by an employer, this decision will likely be the first of many in which the NLRB converts independent contractors to “employees” covered by the NLRA. The only good news is that FedEx has a right to appeal the NLRB’s decision to the District of Columbia Circuit.