NLRB To Reconsider Independent Contractor Standard

ArentFox Schiff
Contact

Arent Fox

In a notice issued yesterday in The Atlanta Opera, Inc. 371 NLRB No. 45 (2021), the National Labor Relations Board (NLRB or Board) invited parties and amici to submit briefs addressing whether the Board should reconsider its standard for determining the independent contractor status of workers.  
 

The notice can be found here.

In its 2019 SuperShuttle DFW, Inc. decision, the Board overruled the prior standard for determining independent contractor status which was set forth in its 2014 ruling in FedEx Home Delivery. The Board held that the FedEx Home Delivery decision impermissibly altered the Board's traditional common-law test for independent contractors by severely limiting the significance of entrepreneurial opportunity to the analysis. 

In yesterday's notice, the Board invited the filing of briefs to afford the parties and interested amici the opportunity to address the following questions:

  1. Should the Board adhere to the independent-contractor standard in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019)?
  2. 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?

Chairman McFerran and Members Wilcox and Prouty issued the notice and invitation. Members Kaplan and Ring dissented. The majority rejected the dissent's position that it is inappropriate for the Board to reexamine its recent precedent in this important area of Federal labor law. According to the majority, "the Board may grant a request for review when compelling reasons support the reconsideration of an important Board policy." 

Briefs not exceeding 20 pages in length may be filed with the Board in Washington, DC, on or before February 10, 2022. The parties (but not amici) may file responsive briefs on or before February 25, 2022, which shall not exceed 30 pages in length. No other responsive briefs will be accepted. Motions for extensions of time in which to file briefs will not be granted absent compelling circumstances. 

[View source.]

Written by:

ArentFox Schiff
Contact
more
less

ArentFox Schiff on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.