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Congressional ______
~tResearch Service
NLRB Adopts New Standard for Identifying
Covered Employees
February 19, 2019
The classification of workers as employees rather than independent contractors is critical for purposes of
most federal labor and employment laws. In general, the rights and protections afforded by these laws are
available only to employees and not independent contractors. A majority of the National Labor Relations
Board (NLRB or Board) recently concluded that a group of drivers who provide services for the shared-
ride van company SuperShuttle are independent contractors and not employees for purposes of the
National Labor Relations Act (NLRA), the federal law that provides collective bargaining rights to most
workers in the private sector. As a result of the Board's determination, SuperShuttle will not be obligated
to negotiate with the drivers over employment-related subjects like wages and benefits.
Notably, in reaching its decision in SuperShuttle DFW, the Board majority emphasized the drivers'
entrepreneurial opportunity for gain or loss, a factor the agency previously identified as only one of
several that should be considered when evaluating employee status. Contending that entrepreneurial
opportunity is a prism through which it would now examine all of the common law factors that have
traditionally been considered when making employee status decisions, the Board overruled a prior
standard that it adopted in 2014. This new approach has been criticized by some because it could deny a
growing number of workers, such as those providing services in the gig economy, collective bargaining
rights. Concern over how workers are classified for purposes of the NLRA prompted the introduction of
legislation in the 115th Congress that would have made it more difficult to designate workers as
independent contractors. The Protecting Workers' Freedom to Organize Act, for example, would have
amended the NLRA to establish a presumption of employee status unless specified criteria were satisfied.
In light of SuperShuttle DFW, it may be possible that similar measures will be introduced in the 116th
Congress.
Employees v. Independent Contractors
Under section 2(3) of the NLRA, the term employee is defined to exclude any individual having the
status of an independent contractor[.] To determine whether a worker is an employee or independent
contractor, the NLRB has applied a common law agency test that examines various factors, including the
control exercised by a company over the worker, whether the worker is engaged in a distinct occupation
or business, and the level of skill required by the worker to provide services. The Board has indicated
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