NLRB Invites Briefs Regarding Independent Contractor Standard

In a notice issued today in The Atlanta Opera, Inc. 371 NLRB No. 45 (2021), the National Labor Relations Board invited parties and amici to submit briefs addressing whether the Board should reconsider its standard for determining the independent contractor status of workers.  

In 2019, in SuperShuttle DFW, Inc., the Board overruled the prior standard for determining independent contractor status which was set forth in FedEx Home Delivery in 2014. In today’s notice, the Board invites the filing of briefs to afford the parties and interested amici the opportunity to address the following questions:

1.  Should the Board adhere to the independent-contractor standard in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019)?

2.  If not, what standard should replace it?  Should the Board return to the standard in FedEx Home Delivery, 361 NLRB 610, 611 (2014), either in its entirety or with modifications?

Chairman McFerran and Members Wilcox and Prouty issued the notice and invitation. Members Kaplan and Ring dissented. 

Briefs not exceeding 20 pages in length may be filed with the Board in Washington, DC on or February 10, 2022.  The parties (but not amici) may file responsive briefs on or before February 25, 2022 which shall not exceed 30 pages in length.  No other responsive briefs will be accepted.  Motions for extensions of time in which to file briefs will not be granted absent compelling circumstances. The parties and amici shall file briefs electronically by E-Filing on nlrb.gov. If assistance is needed in E-filing, please contact the Office of Executive Secretary at 202-273-1940.