On February 10, 2022, WLF urged the NLRB not to overhaul the test for whether a worker qualifies as an independent contractor. 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 now proposes to nullify those amendments and the Supreme Court’s decision by replacing the common-law test with a new, more expansive test. In its brief, WLF argues that the Board can be sure that, if challenged in court, an erratic, novel construction of the NLRA would receive little or no deference. WLF also argues that the current test, by allowing individuals to provide services for others while maintaining independent control over their own work, gives firms that contract with such individuals an increased flexibility that promotes efficiency and spurs productivity. The NLRB’s latest action threatens to erode that very efficiency and productivity.


WLF amicus brief