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Top Five Labor Law Developments for January 2019

The National Labor Relations Board (NLRB) reinstated its pre-2014 standard for determining whether an individual is an independent contractor or an employee. SuperShuttle DFW, Inc., 367 NLRB No. 75 (Jan. 25, 2019). The NLRB determined that the employer’s shuttle van drivers were not employees, but independent contractors.

The Duty of Fair Representation for Public Sector Unions in the Wake of Janus. A Recent District Court Ruling May Signal Change

On February 22, 2018, in anticipation of the Supreme Court’s ruling in Janus that fair share fees for public sector employees are unconstitutional, the International Union of Operating Engineers, Local 150, filed a lawsuit seeking to strike down an Illinois law that compels the union to represent employees who decline to become dues-paying union members. The lawsuit, filed in U.S. District Court in Chicago, names the Illinois Attorney General and the Executive Director of the Illinois Labor Relations Board as defendants. Local 150 argues that the law requiring it to negotiate on behalf of all workers in the bargaining unit violates the union and dues-paying members’ constitutional free speech rights under the First Amendment.

Protected Concerted Activity: Healthcare Employers Should Remain Wary Despite Narrowing Labor Board Standard

In a decision that affects both union and non-union employers, the National Labor Relations Board (NLRB or Board) has taken what is likely the first step toward reining in the expanded scope of what the Obama-era Board considered “protected, concerted activity” under the National Labor Relations Act (NLRA).

Latest Labor Board Decision A Step In The Right Direction, But Not A Magic Bullet

I recently wrote about the January 25 decision from the National Labor Relations Board that makes it easier for businesses to classify their workers as independent contractors (SuperShuttle DFW, Inc.). You can read the full article here. In a nutshell, now that the Board is comprised of Trump appointees and majority Republican, it reversed a 2014 Obama-era decision that claimed to have “refined” the independent contractor test, but in practical terms, had made it harder to classify workers as contractors. The SuperShuttle case overturned the 2014 case and returned to a more balanced standard, one that gives more of an equal weight to both the right-to-control aspects of the relationship and the role of the workers’ entrepreneurship in operating their own businesses.

Another Obama-Era NLRB Precedent Bites the Dust: A Swing Back Toward the Importance of "Entrepreneurial Opportunity" in Independent Contractor Analysis

On January 25, 2019, the National Labor Relations Board (“NLRB”) issued its decision in SuperShuttle DFW, Inc. and Amalgamated Transit Union, overturning the Obama-era decision in FedEx Home Delivery, which downplayed the role of entrepreneurial opportunity in the test to determine whether individuals are independent contractors.

eLABORate: NLRB Reverts Back to Company Friendly Independent Contractor Test

In a decision that has significant implications on the status of ride share drivers for companies such as Lyft and Uber, the National Labor Relations Board (NLRB) on Friday, January 25, 2019, issued a ruling that held that SuperShuttle franchisee van drivers are independent contractors. The NLRB’s decision changes its prior independent contractor test and is a big win for companies that contract labor.

NLRB Puts Long-Standing Common Law Test Back Into Play in SuperShuttle DFW, Inc. Decision

The National Labor Relations Board (NLRB) is returning to its long-standing traditional common law test. The business-friendly decision relates to whether an individual should be classified as an employee or an independent contractor, and became official on January 25, 2019 when the NLRB revised its independent contractor test by overturning a prior 2014 decision.

NLRB Joint Employer Standard Still In Flux

The definition of “joint employer” under the National Labor Relations Act (“NLRA”) has been quite a rollercoaster for several years now. Since 2015, when the National Labor Relations Board (“NLRB” or “Board”) departed from precedent established over 30 years ago in Browning-Ferris, there has been much controversy on when two unrelated business entities share sufficient control over a group of employees such that they may be deemed “joint employers” and held jointly liable to employees for violations under the NLRA. Even with a Board-proposed rule on the joint employer standard pending, a recent decision of the United States Court of Appeals for the District of Columbia shows the joint employer distinction is still far from settled.

NLRB Chairman Fires Back at Request to Withdraw Notice of Proposed Rulemaking on Joint Employment

John Ring, NLRB Chairman, has sent a five-page letter to several members of Congress in response to their request for the NLRB to withdraw its Notice of Proposed Rulemaking on the joint-employer standard.

Supershuttle Transports Independent Contractor Status into the Spotlight

Executive Summary: On January 25, 2019, the National Labor Relations Board (NLRB) affirmed the Acting Regional Director’s determination that franchisees who drive for SuperShuttle are independent contractors, not statutory employees, and therefore are unable to organize or join a union. See SuperShuttle DFW, Inc., and Amalgamated Transit Union Local 1338 (Case 16-RC-010963). In reaching this decision, the Board shifted the analysis back to the common-law agency test it has long used for determining when a worker will be considered an independent contractor rather than an employee for purposes of coverage under the National Labor Relations Act (NRLA). The Board’s decision in SuperShuttle emphasizes the role of entrepreneurial opportunity and rejects the overemphasis placed on “right to control” by its 2014 decision in FedEx Home Delivery, 361 NLRB 610 (2014).