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New NLRB Decision: Independent Contractor Classification

Entrepreneurial Activity, Common Law Factors, Interaction With Federal, State and Local Laws

Recording of a 90-minute CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, April 10, 2019

Recorded event now available

or call 1-800-926-7926

This CLE course will guide employment counsel following the National Labor Relations Board's (NLRB) recent decision in SuperShuttle, providing a new test on how to classify independent contractors. The panel will discuss how to navigate the thorny issue of worker classification while parsing through the various tests applied by different agencies (NLRB, DOL, etc.), in addition to a patchwork of state law on the subject.


According to the U.S. Labor Department, some 10.6 million workers were classified as independent contractors in 2017. On Jan. 25, 2019, the NLRB issued a decision that impacts the way the agency differentiates between employees and independent contractors.

The employer/employee relationship is defined by a patchwork of federal, state and local laws. The distinction between employees and independent contractors is critical and difficult for employers and their counsel to pin down. Each law takes a slightly different approach to sort independent contractors from employees, and the courts and agencies that interpret those laws occasionally change the standards.

The 2019 NLRB SuperShuttle decision explicitly overrules their 2014 decision in FedEx Home Delivery. In this new decision, the NLRB re-established the importance of entrepreneurial activity by using that principle to evaluate the overall effect of each of the factors in the traditional, common-law analysis of the independent contractor relationship.

The ruling has implications for a range of businesses, including ride-hailing companies such as Uber and Lyft, which rely on drivers who are independent contractors and not direct employees.

Listen as our distinguished panel guides employers and their counsel on how to classify workers in light of the new NLRB ruling. The panel will also discuss how to navigate the overlapping federal, state and local laws on classifying independent contractors, as well as best practices for drafting worker agreements.



  1. Overview of NLRB's 2019 SuperShuttle decision
  2. Impact of current "entrepreneurial activity" test on common law factors
  3. Interaction of NLRB's ruling with other federal, state and local laws regarding independent contractors
  4. Best practices for employers in drafting and maintaining independent contractors in light of new decision


The panel will review these and other relevant topics:

  • What was the NLRB's decision in SuperShuttle?
  • How does the SuperShuttle ruling depart from the NLRB's prior decision in FedEx Home Delivery?
  • How does the NLRB's new decision interact with other federal, state and local laws governing independent contractors?
  • What are best practices for employers in maintaining independent contractor relationships in light of this new ruling?


Model, Alan
Alan I. Model

Littler Mendelson

Mr. Model has been representing employers throughout the country in all aspects of labor relations and employment law...  |  Read More

Tracy, Teresa
Teresa R. (Terri) Tracy

Freeman Freeman & Smiley

Ms. Tracy represents management in all areas of labor and employment law and litigation, including wrongful...  |  Read More

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