Trying to keep track of the “tests” that various government agencies use to determine whether an individual is (or is not) an independent contractor?

Don’t ignore the National Labor Relations Board’s latest. It was applied recently in Sisters Camelot, 363 NLRB No. 13 (Sept. 25, 2015).

Whether individuals performing services for an entity are employees, who are protected by the National Labor Relations Act, or independent contractors, who are not, is determined by 11 well-established factors set forth in the Restatement (Second) of Agency § 220 (1958), the NLRB held 2014. They are:

  1. Extent of control by the employer
  2. Whether or not the individual is engaged in a distinct occupation or business
  3. Whether the work is usually done under the direction of the employer or by a specialist without supervision
  4. Skill required in the occupation
  5. Who provides the supplies, tools, and place of work
  6. Length of time for which individual is employed
  7. Method of payment
  8. Whether or not the work is part of the regular business of the employer
  9. Whether or not the parties believe they are creating an independent contractor relationship
  10. Whether the principal is or is not in the business
  11. Whether the evidence tends to show that the individual is, in fact, rendering services as an independent business 

Unfortunately, the Board has provided little guidance on how to analyze the facts relevant to each of these factors. Rather, it has opted for opacity, saying only that the relevance of each factor “will depend upon the factual circumstances of the particular case.”

The Board, therefore, may have ample opportunity to second-guess its administrative law judges’ decisions, emphasizing the factors that support a desired outcome and minimizing those that do not, favoring findings of employee status in many (perhaps most) instances. Which brings us to Sisters Camelot.

There, applying its 11-factor test to reverse its ALJ, the Board concluded the employer improperly treated canvassers as independent contractors. The Board’s conclusions supporting its finding of employee status (and NLRA coverage) were somewhat surprising, at least as applied to four of the more significant factors:

  1. Control:   The Board held the extent of the putative employer’s control supported a finding of employee status. This was true although the canvassers were not required to report to work on any given day or even to let anyone know if they were going to show up to work. That fact, according to the Board, was not determinative. What was determinative, in its view, was the level of control the employer had if a canvasser showed up to work. The employer decided on a pickup and drop-off time, transported canvassers to the locations to be canvassed, and determined which canvassers would cover which location.
  2. Supervision: Canvassers were not subject to supervision while working, yet the Board discounted this by holding, “the nature of the work makes such in-person supervision highly impractical.” The Board rationalized its decision by stating the documentation required of canvassers provided another means of supervision and of assessing performance.
  3. Length of time for which individual is employed: Nothing in the decision addressed the canvassers’ average duration of alleged employment with Sisters’ This appeared to be highly intermittent work: people worked as canvassers when they wanted to earn some extra money. Some worked for a day or two and never worked again.   Yet, because the possibility existed that some canvassers might work for years, the Board found this factor “inconclusive.”
  4. Freedom to work for others: One of the touchstone tests for independent contractor status is an individual’s ability to take on work for other organizations. The canvassers were free to do so, and were even free to solicit the same neighborhoods for other organizations when they were not canvassing for Sisters’ Despite this, the Board held that “the ability to work for multiple employers does not make an individual an independent contractor.”

While the Board’s application of the 11 factors in Sisters Camelot may surprise some, its ultimate conclusion that canvassers were employees covered by the Act is predictable. The Board’s recent decisions underscore that the NLRB is purposefully making it more difficult than ever to create an independent contractor relationship. Therefore, it is more important than ever for employers to evaluate their organizations’ independent contractor agreements and practices carefully in light of the 11 Restatement factors and these decisions.

For a detailed analysis of the Board’s review of all 11 factors in Sisters Camelot, click here.

 

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.