On January 25, 2019, the NLRB issued a Decision wherein it found that van operators at the Dallas/Fort Worth airport are independent contractors, not employees, and thus could not unionize. In doing so, the NLRB overruled its own 2014 FedEx Home Delivery Decision that it said gave insufficient weight to workers’ entrepreneurship opportunities, and too much weight to right-to-control factors, in deciding the issue. Going forward, where appropriate, all the traditional common law independent contractor factors will be evaluated “through the prism of entrepreneurial opportunity”. The freedom of a worker to structure his or her work therefore can override the fact that a customer/alleged employer has requirements/rules regarding the product or service at issue. This new definition will apply most often to those providing short-term services, including in the so-called “gig economy”, and those found to be independent contractors will not only be prevented from union organizing, but will also see their potential unfair labor practice arguments reduced.
Federal and state independent contractor determination standards outside the NLRB remain varied, so experienced employment law counsel should be consulted in this area.