The National Labor Relations Board’s Trump-era worker classification test has resulted in a higher rate of employee wins than the broader standard set during the Obama administration, according to a Bloomberg Law analysis conducted as the board considers ditching that more recent precedent.
The NLRB, administrative law judges, and regional directors applying the ostensibly more business-friendly legal test from the board’s 2019 ruling in SuperShuttle DFW found that workers were employees protected by federal labor law in 10 decisions, compared to just one opinion that the workers were independent contractors. The single contractor finding came in SuperShuttle itself.
Agency adjudicators use of the classification standard from the board’s 2014 decision in FedEx Home Delivery resulted in 17 rulings that workers were employees and seven that they were independent contractors.
Those case outcomes signal that striking down the SuperShuttle test and replacing it with the FedEx standard is unlikely to significantly drive up the percentage of decisions finding that disputed workers are employees. But it could spur more litigation over that question.
The higher rate of employee findings under the SuperShuttle shows that the two tests are similar, their multi-factor analyses give adjudicators wiggle room, and that employment classification is a fact-dependent question, legal scholars said.
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