Government Connection

Law Alert: NLRB Re-Focuses Its Independent Contractor Test

The National Labor Relations Board on Friday determined that van drivers franchised with SuperShuttle DFW, Inc., were properly classified as independent contractors rather than employees. In so holding, the Board expressly overruled the test set forth in its 2014 FedEx Home Delivery decision. According to the Board, the 2014 standard incorrectly minimized the role of “entrepreneurial opportunity” in evaluating whether a driver was an independent contractor. The proper standard, on the other hand, uses the presence or absence of entrepreneurial opportunity (the opportunity to earn a profit or suffer a loss) as an important lens to examine each aspect of the relationship. 

The Board’s re-focusing of the independent contractor analysis is important, as motor carriers can often show driver freedom through entrepreneurial opportunity. For example, entrepreneurial opportunity is highlighted in a driver’s freedom to decide what days to work, which trips to accept, the carriers to which they will provide service on a given day, whether to lease or purchase the vehicle they drive, and even maintenance schedules and fueling programs to be used. What is more, to the extent an independent contractor relationship is established, no right to union organizing or other concerted activity exists.

For more information on the Board’s decision and how the re-focused test may be applied to particular circumstances, feel free to reach out to Greg Feary, Jack Finklea, Jim Hanson, or Don Vogel.

The International Refrigerated Transportation Association (IRTA), a core partner of the Global Cold Chain Alliance, has established a special relationship with Scopelitis Garvin Light Hanson & Feary (Scopelitis), a law firm specializing in transportation legal issues. Scopelitis lawyers can help IRTA members understand if they need legal assistance with their transportation challenges at no cost. If it is determined that legal assistance is needed, IRTA members will receive a 10% discount on Scopelitis rates if they decide to use them as their legal representation. Learn more »

January 26, 2019

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