On June 13, 2023, the NLRB abandoned the common-law test for whether a worker qualifies as an independent contractor or an employee. The decision was a setback for WLF, which filed an amicus brief in the administrative action. For more than 50 years, the Supreme Court has held that the “obvious purpose” of the NLRA “was to have the Board and the courts apply general agency principles in distinguishing between employees and independent contractors under the Act.” Congress enshrined that common-law test in the 1947 Taft-Hartley amendments. The NLRB’s decision effectively nullifies those amendments and the Supreme Court’s precedent by replacing the common-law test with a new, more expansive test.
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