The National Labor Relations Board has returned to the traditional test for defining independent drivers.

The case involved SuperShuttle van drivers who work at the Dallas-Fort Worth Airport. Before the Obama board changes, the NLRB had applied the traditional “common-law agency test” to define an independent contractor.

• This common law test considers:
• How much control the contracting company exercises over the worker.
• Whether the worker’s services fall outside core competencies.
• Whether the contracting company provides the tools, equipment and place of work.
• How long the worker has served that company.
• How the worker is paid.
• Whether the worker has significant “entrepreneurial opportunity,” to generate profits or recognize losses.

The entrepreneurial standard may be the strongest argument for overturning the Obama-board’s changes, thus affording significant extra weight to the entrepreneurial test over the “right-to-control” test that was favored by the Obama-era board, says William Kishman, an attorney with the Squire Patton Boggs law firm.

The SuperShuttle drivers had acquired franchises to operate shuttle vans. In its decision, the board found the franchisees had almost total control over their schedules; could choose how much, or how little, they chose to work; kept all of the fares that they collected, and ultimately were responsible for almost all of their business expenses.

The NLRB also found that they were not in direct communication with the franchisor on a day-to-day basis; were paid by customers, rather than the franchisor; and owned their vans, paid directly for their fuel and maintenance, and were directly responsible for most of their other costs.