Just when you were getting used to the independent-contractor test under FedEx Home Delivery, the National Labor Relations Board (“NLRB” or “Board”) changed it up and overruled itself in a recent case, SuperShuttle DFW, Inc. and Amalgamated Transit Union Local 1338.

The dispute in SuperShuttle was whether franchisees who operate share-ride vans for SuperShuttle were employees covered by the National Labor Relations Act (“NLRA”) or independent contractors.  To make that determination, the Board typically applies the common-law agency test, which looks at various factors regarding the relationship between the employer and the individual.  At issue in SuperShuttle, however, was the Board’s prior interpretation of those factors in the 2014 FedEx case.

The SuperShuttle Board found that the Obama-era Board in FedEx “impermissibly altered the Board’s traditional common-law test for independent contractors by severely limiting the significance of entrepreneurial opportunity to the analysis.”  The SuperShuttle Board therefore overruled its FedEx decision and returned the independent contractor test to its “traditional common-law roots.”

Specifically, the Board stated that it “will continue to consider how the evidence in a particular case, viewed (as it must be) in light of all the common-law factors, reveals whether the workers at issue do or do not possess entrepreneurial opportunity. . . .  Where a qualitative evaluation of common-law factors shows significant opportunity for economic gain (and, concomitantly, significant risk of loss), the Board is likely to find an independent contractor.” 

Using this traditional common-law agency test, the SuperShuttle Board determined that the franchisees were independent contractors.