NLRB Revives Old Independent Contractor Test

On June 13, 2023, the National Labor Relations Board (“NLRB”) overruled a Trump-era decision and brought back the Obama-era 10-factor test that makes it easier for workers to show they are employees, not independent contractors, and thus subject to the protections of the National Labor Relations Act.

In the Trump-era ruling, the Board determined that “entrepreneurial opportunity” was the “animating principle” of the employee/independent contractor test, and that each factor in the test, and the weight each factor carries in the overall analysis, should be evaluated in light of this principle. But in its June 13 decision, the Board stated that this previous ruling had improperly created a “super factor,” rather than adhering to the traditional common law factors and giving equal weight to all factors.  

This decision marks an employee-friendly policy shift that is common with changes in presidential administrations. However, the courts ultimately have the authority to determine the operative classification test and explain how it should be applied. So an employer unhappy with a Board decision can always appeal it to a court. Employers should keep this decision in mind before classifying workers as independent contractors and seek guidance from legal counsel in “close call” situations.

Emily L. Matta

Foulston Employment Law Attorney