The National Labor Relations Board has returned to its Obama-era standard for determining whether an individual is an independent contractor under the National Labor Relations Act. The Atlanta Opera, Inc., 372 NLRB No. 95 (2023).

The Board’s decision returns to the standard it previously set, requiring all incidents of the working relationship be assessed, with no one factor being decisive (FedEx Home Delivery, 361 NLRB No. 610 (2014) (FedEx II)). As a result of the Board’s latest decision, the threshold for finding employee status will be much easier for the Board general counsel to establish.

The Atlanta Opera overrules the Board’s 2019 decision holding entrepreneurial opportunity for gain or loss is the primary factor of the independent contractor test (SuperShuttle DFW, Inc., 367 NLRB No. 75).

Common-Law Agency Test

In evaluating independent contractor or employee status, the Board has traditionally applied the common-law agency test, consisting of 10 factors:

1. Who controls the details of the work
2. Is the work performed a distinct occupation or business
3. Is the work being performed typically done under the supervision of an employer
4. Does the work require special skill
5. Who supplies the tools or equipment
6. The length of the engagement
7. Is compensation based on time spent or completion of a job
8. Is the employer in the business of work that is performed
9. Do the parties believe they have created an independent contractor relationship
10. Whether the employer is in business

Over...

Read Full Story: https://news.google.com/rss/articles/CBMieWh0dHBzOi8vd3d3LmphY2tzb25sZXdpcy5j...