NLRB independent contractors ruling not as simple as it seems

Q&A with Philip Bruce

published in The Oklahoman | February 12, 2019

In January 2019, the National Labor Relations Board issued a decision in the SuperShuttle DFW Inc. case regarding the classification of workers that was seen as welcome news for employers who hire independent contractors. In a Q&A with The Oklahoman, labor and employment attorney Phil Bruce took a closer look at the decision and explained why employers should still proceed with caution when classifying a worker as an independent contractor.

In determining that SuperShuttle franchisees are independent contractors and not statutory employees, the NLRB reverted back to its pre-2014 standard of focusing on “entrepreneurial opportunity” as the guiding principle in its classification analysis, said Bruce. While this decision is most helpful to companies operating in the gig economy or those that operate on a franchisee basis, he cautioned employers in other industries from assuming they can rely on this ruling to support their decisions to classify more of their workforce as independent contractors.

“Whether a worker is correctly classified as an independent contractor affects so many areas of employment law and is fact-intensive,” said Bruce. “The classification of a worker can create issues with wage and hour laws, unemployment benefits, workers’ compensation, anti-discrimination laws, employee benefits, and more.  For example, a company could potentially prevail with the NLRB based on the SuperShuttle decision and be hit with — and possibly lose — a collective action case under the Fair Labor Standards Act the next day. Because the standards of the independent contractor tests vary from law to law, it’s possible that workers meet the standard under one test and not another. In short, take an honest assessment of your company’s situation and then look at the whole picture.”