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NLRB IC Test Highlights Changing Trends in Classification

2/4/2015 By Cynthia Waddell

In an unpublished opinion dated September 30, 2014, the National Labor Relations Board released of a new 11 point test to aid employers in determining whether someone is an employee or independent contractor. This guide came in response to the NLRB’s involvement in a case where FedEx was incorrectly classifying its truck drivers as independent contractors, which deprived the drivers of their rights to organize or join a union. Full details of this and other NLRB decisions can be found on their website.

While the points included in the test provide a solid ground for employers to incorporate into their classification process, they’re not anything new on the misclassification scene. We thought the most interesting twist was the NLRB’s application of the test in the FedEx case. More and more companies are coming under scrutiny for their worker classifications due to issues other than wages or overtime. Individuals classified as ICs are entering situations where their safety is at risk, they’re being harassed, or are in a situation where they would have rights or a level of protection had they been classified as an employee. Since independent contractors aren’t entitled to these rights, their original classification is being questioned.

Training, form of payment and benefits are certainly key differences between employees and IC’s, but we anticipate seeing more classification cases highlighting worker safety, harassment and unions throughout 2015.

Interested in learning more about independent contractors? Visit our Independent Contractor Engagement page.

Disclaimer: The materials contained on this site are for information only and should not be considered as, or a substitute for, accounting, tax or legal advice.

Cynthia Waddell
Cynthia Waddell

Get to know Cynthia:
Cynthia is a Senior Compliance Specialist at Populus Group. She has over a decade of experience with the 1099 independent contractor issue, including support of Fortune 500 clients.

Cynthia resides in San Mateo, California with her husband Allen, and a very spoiled poodle named Jackson. Like most stereotypical California transplants, she enjoys good wine, great friends, and likes to “do brunch.”

Questions, comments, brunch? Contact Cynthia at