Hunter in ‘Law360’ on Biden NLRB Having Little Leeway on Contractor Status

Senior Counsel Jerry M. Hunter was quoted May 12 by Law360 concerning the withdrawal of the Trump-era independent contractor rule by the U.S. Department of Labor, signaling that this issue will remain a priority under President Joe Biden. Legal constraints, however, mean the National Labor Relations Board (NLRB) has comparably little power to revise its worker classification test. Hunter noted he still expects the Biden board to reframe its analysis. While the agency is ostensibly confined to a single test, different administrations have nonetheless articulated different views, with Democrats doing so in ways that find more workers to be employees, and Republicans in ways that find more workers to be contractors, Hunter noted. "If I was a betting person, I would bet money that Lauren McFerran's dissent in SuperShuttle DFW Inc. [will become] a majority opinion," said Hunter, who is a former NLRB general counsel, having served during the administration of former President George H.W. Bush.