NLRB Stands by ‘Refined' Contractor Test; FedEx Home Fails in Bid for Reconsideration

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By Lawrence E. Dubé

March 17 — The National Labor Relations Board March 16 declined to reconsider its September 2014 ruling that a group of Connecticut drivers are employees of FedEx Home Delivery under the National Labor Relations Act, not independent contractors outside the act's protection.

FedEx Home, an operating division of FedEx Ground Package Systems Inc., asked the NLRB to reconsider its findings (361 N.L.R.B. No. 55, 201 LRRM 1050 (2014)) that a new “independent-business factor” should be considered in determining whether an individual is an independent contractor rather than an employee. The company also argued that the board erred in applying its new approach retroactively to pending cases.

NLRB Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Lauren McFerran said there were no circumstances warranting reconsideration, and nothing improper in applying the board's new factor retroactively.

Member Harry I. Johnson dissented from the original decision and said he “vigorously adheres” to his view the board ruling was erroneous. However, he agreed there were no grounds for granting the employer's motion for reconsideration.

Board Added New Factor in September Ruling

In the September 2014 ruling, the board reexamined its approach to independent contractor cases and held that the entrepreneurial opportunity available to a unit of FedEx Home Delivery drivers was only one factor to consider in determining whether they were independent contractors.

Pearce, Hirozawa, and then-Member Nancy J. Schiffer found FedEx unlawfully refused to bargain with an International Brotherhood of Teamsters local that was certified to represent contract drivers at a Hartford, Conn., terminal. Evidence the drivers had a “theoretical” opportunity for financial gain or loss in their dealings with FedEx did not show the drivers were independent contractors, the board said.

The board said entrepreneurial opportunity was “part of a broader factor” requiring the board to examine “whether the evidence tends to show that the putative independent contractor is, in fact, rendering services as part of an independent business.”

Retroactive Application of Test Called Proper

Denying FedEx Home's motion for reconsideration, the board said it had properly applied its “refined” independent contractor standard in finding that the company's Connecticut drivers were employees. 

Although the board's 2014 decision discussed a new factor, the NLRB said, “the considerations that the Board evaluated in FedEx were substantially similar to those that the Board had assessed in prior decisions.”

Finding there was no “particular injustice” in applying the board's “refined standard” to the Hartford drivers, the board denied FedEx Home's motion for reconsideration.

FedEx Home filed a petition for review of the NLRB's decision in the D.C. Circuit (No. 14-1196) on Oct. 8, 2014. Acting on an unopposed motion by the NLRB, the court has held the review proceeding in abeyance pending an NLRB decision on the company's motion for reconsideration.

To contact the reporter on this story: Lawrence E. Dubé in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the order is available at