Employment misclassification

June 13, 2023

Employment Law

Understanding the NLRB’s Revised Test for Employee Misclassification

In a recent development that could have far-reaching implications for the gig economy and other industries, the National Labor Relations Board (NLRB) has revised the test used to determine the classification of workers as independent contractors. Employee misclassification has been a contentious issue, with companies often facing legal challenges and allegations of misclassifying workers to avoid providing benefits and protections. The NLRB’s move aims to provide clearer guidelines for determining employment status, offering greater protection to workers while providing employers with more certainty regarding their legal obligations.

Understanding Employee Misclassification

Employee misclassification occurs when workers who should be classified as employees are wrongly designated as independent contractors. This misclassification enables companies to circumvent labor laws, depriving workers of crucial benefits such as minimum wage, overtime pay, health insurance, and protection under employment discrimination laws. Independent contractors, on the other hand, are considered self-employed and are not entitled to the same level of legal protections and benefits as employees. More than one misclassification test may apply to you. You should contact one of our employment lawyers to review your situation.

The NLRB’s Revised Test

The NLRB’s newly revised test for determining independent contractor status, known as the “Entrepreneurial Opportunity Test,” shifts the focus from a worker’s economic dependency on a company to their entrepreneurial independence. This test evaluates various factors to determine if the worker has significant control over their work and is in a position to make independent business decisions.

Under the revised test, the following factors will be considered:

  1. Control over work: The degree of control the worker has over their work, including scheduling, methods, and tools used.
  2. Opportunity for profit or loss: The worker’s ability to earn profits or sustain losses based on their own managerial skill, initiative, or investment.
  3. Investment in the business: The extent to which the worker has made capital investments or undertaken financial risks in relation to the work performed.
  4. Skill and initiative: The level of skill, business acumen, and initiative required for the work performed.
  5. Permanence of the working relationship: The duration and nature of the working relationship between the worker and the company.

Implications for Workers

The revised test provides employers with clearer guidelines for classifying workers, offering more certainty regarding their obligations and potential legal risks. Companies that have relied on independent contractor relationships will need to carefully reassess their classifications based on the new criteria. Failure to properly classify workers could lead to legal disputes, including allegations of wage theft and other labor law violations.

For workers, the new test offers the potential for increased protections and benefits. If classified as employees, workers gain access to minimum wage guarantees, overtime pay, workers’ compensation, and protection against discrimination and retaliation. However, some critics argue that the revised test may limit the flexibility and autonomy traditionally associated with independent contracting.


The NLRB’s retooling of the independent contractor status test is a significant step toward addressing the issue of employee misclassification. By focusing on the worker’s entrepreneurial opportunity and independence, the revised test aims to provide greater clarity and protection for workers while ensuring employers understand their obligations. As companies adapt to the new guidelines, it is crucial for them to review their worker classifications and consult legal experts if needed. Ultimately, the redefined test seeks to strike a balance between protecting workers’ rights and fostering a flexible labor market in a rapidly evolving economy.

The NLRB’s recent change may not affect your job. There are several other employee misclassification tests that may apply to you. Contact us today for a free initial consultation.