The National Labor Relations Board (NLRB) is the U.S. government agency responsible for enforcing and interpreting the National Labor Relations Act (NLRA), which protects employees` rights to organize and engage in collective bargaining. However, a recent trend in the workplace is the rise of independent contractors, who are not covered by the NLRA and therefore do not have the same protections as traditional employees. This has raised concerns about the legality of misclassifying workers as independent contractors.
In May 2019, the NLRB issued a decision in the case of SuperShuttle DFW, Inc., which clarified the test for determining whether a worker is an independent contractor or an employee under the NLRA. The decision overturned a 2014 ruling that had been criticized for making it easier for employers to classify workers as independent contractors.
Under the new test, the NLRB will consider the following factors:
1. The extent of control that the employer has over the worker`s work, including the ability to set the worker`s schedule and determine the terms of the work.
2. The worker`s opportunity for profit or loss, including the ability to earn more money by working more hours or taking on more responsibilities.
3. The worker`s investment in equipment or materials necessary to perform the work.
4. The degree of skill required to perform the work.
5. The degree of permanence of the working relationship between the worker and the employer.
6. Whether the work is an integral part of the employer`s business.
These factors are not exhaustive, and the NLRB will consider all the circumstances of the working relationship to determine whether the worker is an independent contractor or an employee.
If a worker is found to be an employee under the NLRA, the employer is required to recognize and bargain with any union that the employees choose to form. This means that employees have the right to engage in collective bargaining and to form unions to negotiate with their employer over wages, benefits, and working conditions.
In conclusion, the recent decision by the NLRB in the SuperShuttle case clarifies the test for determining whether a worker is an independent contractor or an employee under the NLRA. This decision provides important protections for workers and ensures that they are not misclassified as independent contractors and denied the benefits and protections of the NLRA. Employers should be aware of this decision and ensure that they are properly classifying their workers to avoid potential legal issues.