On Jan. 25, in SuperShuttle DFW, 367 N.L.R.B., No. 75, 2019 WL 342288 (Jan. 25, 2019), the National Labor Relations Board (“Board”) reversed an Obama-era standard for determining independent contractor status. This decision makes it easier for New Jersey employers to establish contractor status under the National Labor Relations Act (NLRA)—which provides employees, but not contractors, the right to unionize and engage in collective bargaining. Id., 29 U.S.C. §152(3). The facts and results of SuperShuttle, involving a gig economy platform, are likely to raise further interest and consideration for the contractor analysis, especially in the technology-infused work environment that increasingly extends beyond the traditional business model.

The ‘SuperShuttle’ Decision

In SuperShuttle, the Amalgamated Transit Union (“Union”) sought to represent a unit of drivers who offered shared-ride services to and from area airports for SuperShuttle Dallas Fort Worth (“SuperShuttle”), an independent business entity that licenses the right to use the SuperShuttle trademark and transportation system in vans displaying the SuperShuttle “name, logo, and color scheme.” Pursuant to franchise agreements, the drivers were described as non-employee franchisees. SuperShuttle, at **4, 5.