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NLRB Sharpens Standards For Determining Independent Contractor Status

The NLRB recently issued a decision, FedEx Home Delivery, 361 NLRB No. 55 (2014), in which it claims to have “refined” its test for determining whether individuals performing services for an employer are employees, and thus covered by the National Labor Relations Act, or independent contractors, who are not. The NLRB’s new “refined” test rejects “entrepreneurial opportunity for gain or loss” as the proper standard in evaluating independent contractors, instead adding a new factor to its traditional factor test evaluating “whether the evidence tends to show that the individual is, in fact, rendering services as an independent business.”