Friday, February 8, 2019

Fine, here's that NLRB Independent Contractor decision

Whether workers are properly classified as independent contractors or employees is an important issue. It is also a frustrating issue. Different courts and agencies use different tests depending on the circumstances (union organizing, workers' comp, unemployment compensation, wage and hour claims, and on and on). The different tests all utilize a bunch of different factors, and no one factor is determinative (and the factors are not given any particular weight).

To make matters somehow even worse - you get some back-and-forth on the standard within the same agency! Example: the NLRB, which notoriously reverses course with the changing of administrations. So, just to keep readers up to date, here's the NLRB's recent decision in SuperShuttle DFW, Inc. and Amalgamated Transit Union Local 1338.
Not official use.

The NLRB turned to the common law test, and overturned a prior ruling (FedEx). The Board applied this nonexhaustive - wait, nonexhaustive? oh yeah, I forgot to mention, these tests often have additional factors that we don't even know about yet! - list of 10 factors:
(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 business.
So, don't forget to apply these 10 factors (and any others that seem like they might be helpful as the list is "nonexhaustive" after all), and then turn to the 35* other tests, and 473* different factors that all have varying amounts of w
eight and importance depending on who's rendering the decision. Easy, right?

* Rough estimates. 

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