NLRB Rejects D.C.Circuit's FedEx Independent Contractor Analysis

Last week, the NLRB issued its decision in FedEx Home Delivery, the most recent case addressing FedEx's  attempts to classify its drivers as independent contractors. What's notable about this case is that the NLRB expressly refused to follow an earlier FedEx decision by the D.C. Circuit.  In that decision, the court rejected the traditional right-to-control focus of the common law test for employee status.  Instead, the court held that the principal focus was entreprenurial opportunity.  In its recent decision, the NLRB noted that its precedent, as well as the Supreme Court's, used the traditional common-law test.  Moreover, although entrepreneurial opportunity was one of the factors, the proper focus is on actual entrepreneurial opportunity, not the more theoretical opportunity that the court's decision turned on.

As I've written before, I'm no fan of the court's FedEx decision, so I'm glad to see this development.  There's a question whether this is a prelude to Supreme Court action in this area, which has gained increased attention.  I tend to think the Court won't step in any time soon, as it's precedent has been pretty clear on this issue, the D.C. Circuit notwithstanding.  But we'll see.  In in the meantime, it's baeen a bad month for FedEx on this issue, as they've some other cases involving their drivers' classifications.

-JH