Canvassers for a Minneapolis-based not-for-profit were found last week by the NLRB to be employees and not independent contractors. In so ruling, the board reversed an administrative law judge’s ruling to the contrary and applied its new standard from FedEx Home Delivery, 361 NLRB No. 55 (2014), in which the board “restated and refined” the analysis for evaluating whether individuals are employees or independent contractors. In coming to this conclusion, the board summarized the analytical framework it will use going forward to evaluate claimed independent contractor status:
- First, the board noted that “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.”
- Second, the inquiry will follow the common-law factors enumerated in the Restatement (Second) of Agency, Section 220 (1958).
- Third, in assessing a putative independent contractor’s entrepreneurial opportunity for gain and loss, the board will “give weight to actual, not merely theoretical, entrepreneurial opportunity.”
- Fourth, the board will examine whether the putative independent contractor is rendering services as part of an independent business.
- Fifth and finally, the burden of proof falls squarely on the party attempting to assert that it has an independent contractor relationship with the individual.