As we discussed when it was announced, the DOL issued a proposed rule on defining/clarifying independent contractors, following its withdrawal of the prior final rule. A new NLRB decision, by expanding the definition of employee, is in line with the proposed rule. In short, the decision reverts from an approach that emphasizes one factor (entrepreneurial characteristics) to one that utilizes a variety of factors.
Business Takeaway: The decision stresses the NLRB’s prior view: there is no one determinative factor as to independent contractor status. Accordingly, and while we wait for a DOL final rule, the decision forecasts the NLRB’s approach for the foreseeable future. If you work with independent contractors, and particularly if you determined such classifications in recent years, it is time to revisit those determinations.