This edition of Employment Flash looks at developments in labor and employment law, including with respect to restrictive covenants; new state anti-harassment laws; minimum wage increases; age bias claims; and the employee classification test and definition of concerted activity. The newsletter also examines how the U.K., France and Germany are working to close the gender pay gap.

On January 25, 2019, in SuperShuttle DFW, Inc. and Amalgamated Transit Union Local 1338, Case 16–RC–010963, the National Labor Relations Board (NLRB or Board) overturned its 2014 decision in FedEx Home Delivery and International Brotherhood of Teamsters, Local Union No. 671, 361 NLRB No. 55 (Sept. 30, 2014), holding that the 2014 decision impermissibly altered the common-law employee classification test by limiting the importance of entrepreneurial opportunity (i.e., whether a role presents the opportunities and risks inherent in entrepreneurialism). In FedEx Home Delivery, the NLRB declined to adopt the traditional common-law employee classification test previously articulated in FedEx Home Delivery v. NLRB, 563 F.3d 492 (D.C.Cir. 2009), and found that the U.S. Court of Appeals for the District of Columbia Circuit’s test disproportionately emphasized the entrepreneurial opportunity of workers without due consideration of the constraints that a company may place on workers’ ability to realize such opportunity.

In its 2014 decision, rather than examining entrepreneurial opportunity as a stand-alone factor, the NLRB treated it as only a part of another factor of “whether the evidence tends to show that the putative independent contractor is, in fact, rendering services as part of an independent business.” At the same time, it considered other traditional factors of the employee classification test including, but not limited to, the degree of control exercised by the employer, skills required on the job and duration of working relationship between the worker and the employer. Furthermore, in its 2014 decision, the NLRB determined that, to be relevant, evidence of entrepreneurial opportunity must be more than theoretical, demonstrating what the workers in question have actually done to realize their entrepreneurial opportunity. In overruling its 2014 FedEx Home Delivery decision, which had “fundamentally shifted the independent contractor analysis, for implicit policy-based reasons” by discounting the weight of entrepreneurial opportunity, the NLRB in SuperShuttle DFW underscored that entrepreneurial opportunity is “an important animating principle” by which to evaluate the factors of the traditional common-law test of employee classification. Applying the traditional common-law employee classification test, the NLRB in SuperShuttle DFWconcluded that the franchisees that operate share-ride vans are independent contractors and thus are not covered by the National Labor Relations Act (NLRA or Act).