Richard Reibstein, co-head of Locke Lord’s Independent Contractor Misclassification and Compliance Practice, was quoted by Law360 on the National Labor Relations Board’s (NLRB) decision to again reconsider its test for deciding whether workers are employees or independent contractors under the federal labor law. In a Dec. 27 decision, the Democratic-appointed majority of the Board invited all interested stakeholders to weigh in on whether the NLRB should replace the test for independent contractor status last issued by the prior Republican-appointed majority of the Board with a prior test issued in the Obama Administration.
As Reibstein points out, though, the U.S. Court of Appeals for the D.C. Circuit, which usually reviews NLRB decisions appealed by companies, has previously rejected the Obama Administration test for independent contractor status under the National Labor Relations Act. Reibstein noted that precedent could be an obstacle to the current Board reverting to a new or modified test. “If it is inconsistent with the D.C. Circuit’s test, it is likely to be doomed to failure,” said Reibstein.
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