News and Information

NLRB Modifies Independent Contractor Standard

On June 13, 2023, in a decision in The Atlanta Opera, Inc., the National Labor Relations Board (NLRB) returned to the 2014 FedEx Home Delivery standard for determining independent contractor status under the National Labor Relations Act (NLRA) and overruled SuperShuttle (2019). In its decision, the Board ruled that independent contractor status will be evaluated by a list of common-law factors, and rejected the holding of the SuperShuttle decision that entrepreneurial opportunity for economic gain or loss should be the “animating principle” of the independent contractor test. The common-law factors include:

• Extent of control by employer
• Whether or not individual is engaged in a distinct occupation or business
• Whether the work is usually done under the direction of the employer or by a specialist without supervision
• Skill required in the occupation
• Whether the employer or individual supplies instrumentalities, tools, and place of work
• Length of time for which individual is employed
• Method of payment
• Whether or not work is part of the regular business of the employer
• Whether the evidence tends to show that the individual is rendering services as an independent business

For more details, see the NLRB press release.