The National Labor Relations Board (the “NLRB” or “Board”) seemingly took very little time off during the holidays and in the last few weeks announced that it is seeking public input on whether to reconsider two significant standards. First, on December 27, 2021, the NLRB issued a notice inviting parties to submit briefs on whether it should reconsider its standard for determining independent contractor status. Second, on January 6, 2022, the Board invited parties to file briefs on whether it should continue to adhere to the standard established for determining whether a facially neutral work rule violates Section 8(a)(1) of the National Labor Relations Act (“NLRA” or the “Act”). These invitations come hot on the heels of the Board’s December 7th invitation for briefing on its standard for determining appropriate bargaining units.
Independent contractors are exempt from coverage under the NLRA, and therefore these workers do not enjoy the rights and protections afforded by the Act. Whether a particular employee or group of employees is classified as an independent contractor is of paramount importance to any employer contemplating utilizing these workers. Due to the rise of the gig economy and other factors that have disrupted the traditional employer-employee relationship, the Board has grappled with the proper standard for determining worker classification over the last decade. Historically, the NLRB used the...
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