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LABOR & EMPLOYMENT

the Board should also evaluate whether the significant entrepreneurial opportunity the more of one, the less of the other. It stated
company imposes restrictions on a worker’s and control over their earnings: (1) drivers that “entrepreneurial opportunity often
entrepreneurial opportunities. Id. at 610. made a significant initial investment in their flowers where the employer takes a ‘hands off’
What was the outcome? Applying the business by purchasing or leasing a van approach.” Id.
refined test, the same type of workers who and paying franchise fees; (2) drivers had The Board stated that its independent
the D.C. Circuit had held to be independent nearly unfettered opportunity to meet and contractor analysis is qualitative, rather
contractors in 2009 were held to be employees exceed their weekly overhead because they than strictly quantitative. It explained that it
by the Board in 2014. had total control over their schedule — they does not merely count up the common law
could work as much as they wanted, when factors that favor independent contractor
The Board’s 2019 SuperShuttle Decision they wanted; (3) drivers kept all fares they status to see if they outnumber the factors
In January 2019, the Board overruled the collected, so the more they worked, the that favor employee status. Instead, it must
refinement and returned to the traditional more money they made; and (4) drivers had make a qualitative evaluation of those factors
common law independent contractor test that discretion over the bids they chose to accept, based on the particular circumstances of
the NLRB had applied for five decades prior to so they could weigh the cost of a particular each case. Id.
the 2014 FedEx decision. trip (in terms of time spent, gas, and tolls) The Board concluded that where the
The current Board held that the FedEx 2014 against the fare received. Id. at *12. common law factors demonstrate that the
Board mischaracterized the D.C. Circuit’s The Board held that these factors workers are afforded significant entrepreneurial
opinion in FedEx 2009 and impermissibly demonstrated the drivers had significant opportunity — opportunity for economic gain
altered the traditional common law test opportunity for economic gain and significant and risk of loss — the Board will likely find
by severely limiting the significance of risk of loss, strongly supporting a finding of independent contractor status. Id.
entrepreneurial opportunity to the analysis. independent contractor status. Id. at *14.
SuperShuttle DFW, Inc., 367 NLRB at *11-12. What Does This Mean for the Future?
The Board found that rather than The Role of Entrepreneurial Opportunity in The SuperShuttle decision is important
considering the entrepreneurial opportunity, the Independent Contractor Analysis for any business that utilizes independent
if any, afforded a worker by the common law The SuperShuttle Board clarified the role contractors, but especially for the growing
factors, the 2014 Board limited that inquiry to a entrepreneurial opportunity plays in its sharing and gig economies. It most notably
single aspect of a newly created factor, thereby determination of independent contractor affects the app-based companies where
altering the test and greatly diminishing the status. It explained that entrepreneurial workers are free to log on and off at will, such
significance of entrepreneurial opportunity. opportunity is not an individual factor in the as drivers for Uber and Lyft.
Id. at *8. test. Rather, it’s a principle to help evaluate the The sharing and gig economies have
The SuperShuttle case addressed whether overall significance of the ten common law experienced explosive growth. According to
drivers of shared ride vans were independent factors. Id. at *2. a study by PwC, the global sharing economy
contractors. The drivers supplied their own The Board stated that common law factors is estimated to grow from $15 billion in 2014
vans and paid SuperShuttle an initial franchise that support a worker’s entrepreneurial to $335 billion by 2025. This year will see the
fee, a decal fee, and a flat weekly fee for use of opportunity generally indicate independent first sharing economy IPOs, as both Uber and
the SuperShuttle brand and its dispatch system, contractor status. Conversely, factors that Lyft have filed to go public. This is the future
which they connected to with a device. When support employer control indicate employee of work.
a driver wanted to start work and pick up an status. Id. An increasing number of states are seeking
assignment, he could do so by turning on the The Board explained how this analysis to expand employment protections to workers
device. Customers could coordinate pickup will be applied to future inquiries: “Going in the sharing economy. But the SuperShuttle
requests and pay via the national SuperShuttle forward, we will continue to consider how decision signals that the current NLRB will
website or phone number. The pickup requests the evidence in a particular case, viewed not follow that lead. With this decision,
then appeared on the drivers’ devices as job (as it must be) in light of all the common- employers can expect it to be easier to show
bids that drivers could choose to accept or law factors, reveals whether the workers at that a worker is an independent contractor
decline. For each bid, the device displayed issue do or do not possess entrepreneurial instead of an employee.
the fare amount, the passenger’s name and opportunity.” Id. at *11.
address, and the pickup time. Drivers were The Board explicitly rejected the FedEx
entitled to all fares paid by customers and did 2014 Board’s holding that consideration of Aaron Schmidt is the Vice
not share the fare with SuperShuttle. Drivers entrepreneurial opportunity should be limited Chairman of Ohio’s State
paid their own expenses, which included gas, to one aspect of a single factor. Id. Employment Relations Board,
tolls, licensing fees, and vehicle maintenance. The Board stated that its subtle shift in which administers the state’s
Id. at *4-5. emphasis from control to entrepreneurial collective bargaining laws for
The Board held that the drivers were opportunity did not fundamentally alter the public employers and employees. He is a graduate
independent contractors under the independent contractor analysis. The Board of Cleveland-Marshall College of Law. He has
traditional common law test, finding that reasoned that control and entrepreneurial been a CMBA member since 2004. He can be
the following facts demonstrated they had opportunity are two sides of the same coin: reached at aaron.schmidt@serb.ohio.gov.
May 2019 Cleveland Metropolitan Bar Journal | 37