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A new National Labor Relations Board (NLRB) decision has drawn a blurrier line between employers and independent contractors. Returning to pre-Obama-era policies, the NLRB is now more likely to acknowledge independent contractor relationships.

A wide array of federal, state and local laws govern the relationship between employers and their employees. But often these laws do not apply to those classified as independent contractors.

The distinction between the two is critical, but hazy, as each law has a slightly different way of discerning independent contractors from employees. Courts and agencies add complication as well through differing interpretations of those laws, along with frequently changing standards according to appointed political party.

Back and Forth

Last year the California Supreme Court broadened the definition of “employee” for wage order claims. Obama-era guidance restricted an employer’s ability to classify workers as independent contractors. Now under President Trump, federal agencies are swinging back the other way.

According to Ryan Funk of Faegre Baker Daniels, the new NLRB decision returns to how it viewed independent contractors before Obama-era restrictions. Funk writes, “The main difference between the new test and the Obama-era one is how the agency looks at whether workers have ‘entrepreneurial opportunity.’”

Action vs. Opportunity

The Obama-era decision gave weight only to actual entrepreneurial activity (and even then, only when looking at just one part of a multi-factor test.) This narrow view makes the chance of meeting criteria significantly slim.

The new NLRB decision re-establishes the value of entrepreneurial activity. The principle of “opportunity for entrepreneurial activity” is used to evaluate the overall effect of each of the ten factors in a common-law analysis of an independent contractor relationship.

The decision is employer friendly, as it frees up employers to classify independent contractors and drop the host of governing laws.

Boiling It Down

While employers are freed up through the new decision, the line is still blurry. Those looking for a clear distinction between employee and independent contractor are in for a letdown. According to Funk, “Any legal test with ten factors is bound to boil down to a case-by-case approach.”

Even tests and their factors can vary case-by-case. Over the last thirty years the IRS has used an old revenue ruling twenty-point test, the tax court has used a seven-point test, and the IRS has espoused a three-pronged “control test.” Confusion is certainly understandable.

Therefore, independent contractor relationships should be re-analyzed in light of the new NLRB approach. Based on potential IRS involvement, it’s also important to note that the NLRB is just one voice in a crowd of agencies, so employers should stay up to date as independent contractor tests continue to evolve.