NLRB Decision Adds to Patchwork of Employee Classification Standards

On Jan. 25, 2019, the National Labor Relations Board (NLRB) issued an employer-friendly decision in SuperShuttle DFW, 367 N.L.R.B., No. 75 that added a wrinkle to the already complex patchwork of laws determining whether a worker is an employee or an independent contractor. Stemming from a dispute involving whether airport shared-ride van drivers could unionize, the SuperShuttle decision reaffirmed the significance of “entrepreneurial opportunity,” including the ability to self-regulate how much one works and therefore earns, in being classified as an independent contractor. One business attorney says the ruling is an important reversal from other contractor tests that had been trending in the favor of employee status, especially the 2018 Dynamex decision from the California Supreme Court that upheld the strict “ABC” test. “Employers must be aware that a person could be considered an employee under one law and a contractor under another,” comments David James, employment attorney at Nilan Johnson Lewis. “Claims that arise from the National Labor Relations Act would likely now result in contractor status, but a concurrent wage-and-hour claim in California would likely result in employee status.” James advises that employers carefully review the structure of contractor agreements in light of the SuperShuttle ruling. To contact David James about contractor classification, specifically as it relates to the NLRA or the patchwork of laws in this area, contact him at djames@nilanjohnson.com or 612.305.7573.

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