The National Labor Relations Board has overruled FedEx Home Delivery, 361 NLRB 610 (2014). In that case, the Obama-Board decided that, in determining whether an individual is an independent contractor or an employee, “entrepreneurial opportunity represents merely ‘one aspect of a relevant factor that asks whether the evidence tends to show that the putative contractor is, in fact, rendering services as part of an independent business.’” In SuperShuttle DFW, Inc., 367 NLRB No. 75 (January 25, 2019) the Board decided that its FedEx Home Delivery decision had (incorrectly) considerably limited the significance “of entrepreneurial opportunity by creating a new factor (‘rendering services as part of an independent business’) and then making entrepreneurial opportunity merely ‘one aspect’ of that factor.”

The Board decided “the FedEx Board impermissibly altered the common-law test and longstanding precedent, and to the extent the FedEx decision revised or altered the Board’s independent-contractor test,” it was overruled. The Board “return[ed] to the traditional common-law test that the Board applied prior to FedEx.”

Board Chairman John Ring, and Members William Emanuel and Marvin Kaplan comprised the majority; member Lauren McFerran dissented.