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Board reverses course on Obama-era independent contractor analysis

Continuing a series of changes charted by the Trump Board, the NLRB has reversed course on the Obama Board’s approach to independent contractor analysis. In a case involving SuperShuttle drivers, the Board has made it easier for companies to use, and for entrepreneurs to become, independent contractors.

Whereas the Obama-era approach looked at whether the company had the ability to control a putative contractor. Now the Board will look to the exercise of actual control and specifically whether the exercise of actual control is sufficient to negate the contractor’s “entrepreneurial opportunity.”

The Board cautioned that a contractor’s “economic dependency on the company does not negate the existence of ‘economic opportunity.'” “(A)ny sole proprietor of a small business that contracts its services to a larger entity” is, the Board explained, economically dependent on that company.

Large corporations such as Fed-Ex or SuperShuttle will always be able to set terms of engagement in such dealings, but this fact does not necessarily make the owners of the contractor business the corporation’s employees.

Additionally the Board cautioned that control, which is required by the government, should not be considered in this analysis.

(R)equirements imposed by governmental regulations do not constitute control by an employer; instead, they constitute control by the governing body.

Instead, the Board will focus its analysis on the 10 common law factors set forth in the Restatement (Second) of Agency, sec. 220, which the Board quoted in length, as follows:

In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

(a) The extent of control which, by the agreement, the master may exercise over the details of the work.

(b) Whether or not the one employed is engaged in a distinct occupation or business.

(c) 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.

(d) The skill required in the particular occupation.

(e) Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work.

(f) The length of time for which the person is employed.

(g) The method of payment, whether by the time or by the job.

(h) Whether or not the work is part of the regular business of the employer.

(i) Whether or not the parties believe they are creating the relation of master and servant.

(j) Whether the principal is or is not in the business.

Additionally the Board will consider whether the putative contractor has “significant entrepreneurial opportunity for gain or loss.” Then, the Board will consider related relevant factors, as follows:

Related to this question, the Board has assessed whether purported contractors have the ability to work for other companies, can hire their own employees, and have a proprietary interest in their work.

Applying this test to the SuperShuttle drivers, the Board held they are properly characterized as independent contractors. The Board noted that franchisee-drivers own their own vans. They control “their daily work schedules and working conditions, and the method of payment, where  franchisees pay a monthly fee and keep all fares they collect.” Additionally, “SuperShuttle has little control over the means and manner of the franchisees’ performance while they are actually driving and that SuperShuttle’s compensation is not related at all to the amounts of fares collected by the franchisees.” Their “Unit Franchise Agreement” states they are independent contractors.

The case will have major impact for companies of all kinds, not just franchisees.

Source: SuperShuttle DFW, Inc., 367 NLRB No. 75 (1/25/19).