The National Labor Relations Board must overcome adverse precedent to win federal court enforcement of its decision bringing back an Obama-era test for determining whether a worker is an employee or an independent contractor.
A chief obstacle for the NLRB’s June 13 revival of the employment status standard from its 2014 ruling in FedEx Home Delivery is the US Court of Appeals for the District of Columbia’s 2017 rejection of that decision. That marked the second time the DC Circuit disagreed with the board and found FedEx drivers to be independent contractors.
Those DC Circuit rulings are particularly problematic because an employer unhappy with an NLRB decision can always appeal it to that court, regardless of where the company is headquartered or where the dispute took place.
The NLRB brought back its FedEx standard in a decision finding that makeup artists and hairstylists at the Atlanta Opera are employees with rights under the National Labor Relations Act, rather than independent contractors who don’t enjoy the protections of that law. The Democratic-majority NLRB scrapped the test from the 2019 ruling in SuperShuttle DFW, Inc., which was handed down by a board controlled by Trump-appointed Republicans.
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