NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.

SuperShuttle DFW, Inc. and Amalgamated Transit
Union Local 1338. Case 16–RC–010963
January 25, 2019
DECISION ON REVIEW AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN,
KAPLAN, AND E MANUEL
The issue in this case is whether franchisees who operate shared-ride vans for SuperShuttle Dallas-Fort Worth
are employees covered under Section 2(3) of the National Labor Relations Act or independent contractors and
therefore excluded from coverage. On August 16, 2010,
the Acting Regional Director issued a Decision and Order in which she found, based on the Board’s traditional
common-law agency analysis, that the franchisees in the
petitioned-for bargaining unit were independent contractors, not statutory employees. Accordingly, she dismissed the representation petition at issue.
Thereafter, pursuant to Section 102.67 of the National
Labor Relations Board’s Rules and Regulations, the Union filed a request for review of that decision. On November 1, 2010, the Board granted the Union’s request
for review. The Union and the Employer filed briefs on
review, and the AFL–CIO filed an amicus brief. The
Employer also filed a response to the AFL–CIO’s brief.
Before the Board issued its decision on the Union’s request for review, it issued its decision in FedEx Home
Delivery, 361 NLRB 610 (2014) (FedEx), enf. denied
849 F.3d 1123 (D.C. Cir. 2017) (FedEx II), in which a
Board majority purportedly sought to “more clearly define the analytical significance of a putative independent
contractor’s entrepreneurial opportunity for gain or loss.”
Id. at 610. The Board majority explicitly declined to
adopt the holding of the United States Court of Appeals
for the District of Columbia Circuit in a prior FedEx
case1 “insofar as it treats entrepreneurial opportunity (as
the court explained it) as an ‘animating principle’ of the
inquiry.” FedEx Home Delivery, 361 NLRB at 610.
Rather, the Board found that entrepreneurial opportunity
represents merely “one aspect of a relevant factor that
asks whether the evidence tends to show that the putative
contractor is, in fact, rendering services as part of an
independent business.” Id. at 620 (emphasis in original).
In so doing, the Board significantly limited the importance of entrepreneurial opportunity by creating a new
FedEx Home Delivery v. NLRB, 563 F.3d 492, 497 (D.C. Cir.
2009) (FedEx I).
1

367 NLRB No. 75

factor (“rendering services as part of an independent
business”) and then making entrepreneurial opportunity
merely “one aspect” of that factor. As explained below,
we find that the FedEx Board impermissibly altered the
common-law test2 and longstanding precedent, and to the
extent the FedEx decision revised or altered the Board’s
independent-contractor test, we overrule it and return to
the traditional common-law test that the Board applied
prior to FedEx, and that the Acting Regional Director
applied in this case.
Having carefully reviewed the entire record, including
the parties’ briefs and the amicus brief on review, and
applying the Board’s traditional independent-contractor
analysis, we affirm the Acting Regional Director’s decision and her finding that the franchisees are independent
contractors. Accordingly, we dismiss the petition.
I. LEGAL FRAMEWORK
A. The Common-Law Agency Test
Section 2(3) of the Act, as amended by the TaftHartley Act in 1947, excludes from the definition of a
covered “employee” “any individual having the status of
an independent contractor.” 29 U.S.C. § 152(3). The
party asserting independent-contractor status bears the
burden of proof on that issue. See, e.g., BKN, Inc., 333
NLRB 143, 144 (2001); accord NLRB v. Kentucky River
Community Care, 532 U.S. 706, 710–712 (2001) (upholding Board’s rule that party asserting supervisory
status in representation cases has burden of proof).
To determine whether a worker is an employee or an
independent contractor, the Board applies the commonlaw agency test. NLRB v. United Insurance Co. of America, 390 U.S. 254, 256 (1968). The inquiry involves application of the nonexhaustive common-law factors enumerated in the Restatement (Second) of Agency §220
(1958):
(a) The extent of control which, by the agreement, the
master may exercise over the details of the work.
(b) Whether or not the one employed is engaged in a
distinct occupation or business.
(c) The kind of occupation, with reference to whether,
in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.
(d) The skill required in the particular occupation.
2 As the Board noted in Roadway Package Systems, Inc., 326 NLRB
842, 849 (1998), Supreme Court cases “teach us not only that the common law of agency is the standard to measure employee status but also
that we have no authority to change it.”

 2

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

(e) Whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the
person doing the work.
(f) The length of time for which the person is employed.
(g) The method of payment, whether by the time or by
the job.
(h) Whether or not the work is part of the regular business of the employer.
(i) Whether or not the parties believe they are creating
the relation of master and servant.
(j) Whether the principal is or is not in business.
In applying these factors, the Court noted that there is
no “shorthand formula” and held that “all the incidents of
the relationship must be assessed and weighed with no
one factor being decisive. What is important is that the
total factual context is assessed in light of the pertinent
common-law agency principles.” Id. at 258.
B. Developments Since United Insurance
In the 50 years since the Supreme Court’s decision in
United Insurance, the Board and the courts have revisited and refined the proper application of the common-law
factors to the independent-contractor analysis. See, e.g.,
Roadway Package System, Inc., 326 NLRB 842 (1998),
St. Joseph News-Press, 345 NLRB 474 (2005), and DialA-Mattress Operating Corp., 326 NLRB 884 (1998)
(considering, among other things, (1) the Board’s authority to change or modify the common-law right-of-control
test to determine if an individual is an employee; (2) the
relative importance of factors indicative of employee or
independent-contractor status; and (3) evidence of financial gains and losses by drivers in the Roadway cases).
The District of Columbia Circuit Court of Appeals observed in FedEx I, 563 F.3d at 497, that over time, the
Board, while retaining all the common-law factors, had
shifted the emphasis from control to whether putative
independent contractors have significant entrepreneurial
opportunity for gain or loss (citations omitted). The
court noted that “while the considerations at common
law remain in play, an important animating principle by
which to evaluate those factors in cases where some factors cut one way and some the other is whether the position presents the opportunities and risks inherent in entrepreneurialism.” Id. Further, the court noted that the
common-law test “is not merely quantitative . . . there
also is a qualitative assessment to evaluate which factors

are determinative in a particular case, and why.” Id. at
497 fn. 3. Thus, entrepreneurial opportunity is not an
individual factor in the test3; rather, entrepreneurial opportunity, like employer control, is a principle to help
evaluate the overall significance of the agency factors.
Generally, common-law factors that support a worker’s
entrepreneurial opportunity indicate independentcontractor status; factors that support employer control
indicate employee status. The relative significance of
entrepreneurial opportunity depends on the specific facts
of each case.4
In 2014, the Board again reviewed its independentcontractor analysis in FedEx Home Delivery, 361 NLRB
610, involving the drivers at a FedEx facility in Hartford,
Connecticut. The Board majority sought “to more clearly define the analytical significance of a putative independent contractor’s entrepreneurial opportunity for gain
or loss.” Id. at 610. The Board held that it would give
weight to actual, not merely theoretical, entrepreneurial
opportunity, and that it would necessarily evaluate the
constraints imposed by a company on an individual’s
ability to pursue this opportunity. In addition, the Board
held that it would evaluate—in the context of weighing
all relevant common-law factors—whether the evidence
tends to show that the putative independent contractor is,
in fact, rendering services as part of an independent business.5 The Board held that this factor would encompass
not only whether the putative contractor has a significant
entrepreneurial opportunity, but also whether the putative
contractor (a) has a realistic ability to work for other
companies; (b) has a proprietary or ownership interest in
his work; and (c) has control over important business
decisions, such as the scheduling of performance, the
hiring, selection, and assignment of employees, the purchase of equipment, and the commitment of capital.6
C. Other Relevant Board Law
In applying the common-law test to the taxicab industry, the Board has given significant weight to two factors:
“the lack of any relationship between the company's
compensation and the amount of fares collected,” and
3 Although the Board has occasionally listed entrepreneurial opportunity as a separate factor, see, e.g., Pennsylvania Academy of Fine
Arts, 343 NLRB 846, 846 fn. 1 (2004), it is not one of the factors listed
in the Restatement (Second) of Agency.
4 Despite our dissenting colleague’s overwrought claims to the contrary, the D.C. Circuit does not (and we do not) consider entrepreneurial opportunity to be a “super-factor,” an “overriding consideration,” a
“shorthand formula,” or a “trump card” in the Board’s independentcontractor analysis. But as our review of the Board’s case law shows,
entrepreneurial opportunity, however it is characterized, has always
been at the core of the common-law test.
5 Id. at 620.
6 Id. at 621.

 SUPERSHUTTLE DFW, INC.

“the company’s lack of control over the manner and
means by which the drivers conduct business after leaving the [company’s] garage.” AAA Cab Services, 341
NLRB 462, 465 (2004) (citing Elite Limousine Plus, 324
NLRB 992, 1001 (1997)); City Cab Co. of Orlando, 285
NLRB 1191, 1193 (1987).7 The Board has also held that
when a driver pays a company a fixed rental and retains
all fares he collects without accounting for those fares,
there is a strong inference that the company does not
exert control over the means and manner of his performance. Metro Cab Co., 341 NLRB 722, 724 (2004).
The theory underlying this inference is that in a flat-rate
system, the company makes its money irrespective of the
fares received by drivers; therefore, the company has no
compelling reason to try to control the means and manner of the drivers’ performance. Id.
Finally, the Board has held that requirements imposed
by governmental regulations do not constitute control by
an employer; instead, they constitute control by the governing body. Elite Limousine Plus, 324 NLRB at 1002.
The Board has stated that employee status will be found
only where “pervasive control” by the private employer
“(exceeds) governmental requirements to a significant
degree.” Teamsters Local 814 (Santini Bros. Inc.), 223
NLRB 752, 753 (1976), enfd. 546 F.2d 989 (D.C. Cir.
1976), cert. denied 434 U.S. 837 (1977); see also Seafarers Local 777 (Yellow Cab) v. NLRB, 603 F.2d 862, 875–
876 (D.C. Cir. 1979); NLRB v. Associated Diamond
Cabs, Inc., 702 F.2d 912, 922 (11th Cir. 1983).
II. FACTUAL BACKGROUND
SuperShuttle Dallas-Fort Worth (DFW), an independent business entity, maintains a license agreement with
SuperShuttle International and SuperShuttle Franchise
Corporation for the right to use the SuperShuttle trademark and transportation system in the Dallas-Fort Worth
area. SuperShuttle International, which owns the SuperShuttle name, logo, and color scheme, develops proprietary software for dispatching, cashiering, and taking
reservations for use in administering a shuttle van transportation system. Pursuant to the license agreement,
SuperShuttle DFW is permitted to market and deploy the
SuperShuttle transportation system in its designated local
market.
The SuperShuttle DFW franchisees in the petitionedfor unit primarily transport passengers to and from Dallas-Fort Worth and Love Field airports. Before 2005,
SuperShuttle DFW designated its drivers as employees.
During that period, SuperShuttle assigned drivers—who
earned hourly wages—to regularly scheduled shifts pick7 FedEx, supra, which involved package delivery drivers, did not
purport to modify the Board’s precedent regarding taxicab drivers.

3

ing up customers in company-owned shuttle vans. In
2005, SuperShuttle converted to a franchise model,
which remains in place. Under the current franchise
model, drivers are required to sign a 1-year Unit Franchise Agreement (UFA) that expressly characterizes
them as nonemployee franchisees who operate independent businesses.8 Franchisees are required to supply their
own shuttle vans and pay SuperShuttle DFW an initial
franchise fee and a flat weekly fee for the right to utilize
the SuperShuttle brand and its Nextel dispatch and reservation apparatus. Franchisees work no set schedule or
number of hours or days per week; they work as much as
they choose, whenever they choose. Franchisees are then
entitled to the money they earn for completing the assignments that they select. Individual franchisees may
also hire and employ relief drivers to operate their vans.
Amalgamated Transit Union Local 1338 (the Union)
seeks to represent a unit of SuperShuttle DFW drivers,
including those who operate as franchisees pursuant to
the UFA, and relief drivers. At the time of the hearing,
there were approximately 88 drivers who operated as
franchisees and 1 relief driver.
A. Airport Contract and Permits
SuperShuttle DFW is permitted to operate at DFW
Airport pursuant to a shared-ride contract (Airport Contract) between the Company and the Dallas-Fort Worth
International Airport Board, a public governmental agency. 9 The 130-page document has extensive terms, which
dictate most of the ways that SuperShuttle DFW operates
its business. The Employer is required to maintain a
customer complaint procedure, screen franchisees for
drugs and alcohol, and train franchisees. As to the SuperShuttle vans, which franchisees must own or lease,
the contract governs marking on the vans, the internal
condition of the vans including the number of seats, vehicle maintenance requirements, and postaccident safety
inspections. DFW Airport has the right to inspect vans
operated by SuperShuttle and to audit SuperShuttle’s
compliance with the Airport Contract.
Under the Airport Contract, franchisees must have a
permit issued by Airport Operations. SuperShuttle must
perform criminal background checks, a driving history
background check, and drug and alcohol screening in
accordance with Department of Transportation standards.
8 The agreement states that “persons who do not wish to be franchisees and independent business people but who prefer a more traditional employment relationship should not become SuperShuttle franchisees.”
9 Franchisees are not signatories to the Airport Contract. Although
franchisees in the petitioned-for unit serve both DFW and Love Field
airports, the Airport Contract entered into evidence only refers to DFW
Airport.

 4

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

A franchisee must be at least 19 years old, a legal resident, have a valid Texas driver’s license, be able to effectively communicate in English, and not be suspended
from another ground transportation service.
B. Unit Franchise Agreement
The Unit Franchise Agreement (UFA), which governs
the relationship between the franchisees and SuperShuttle, describes the SuperShuttle transportation system and
delineates how franchisees are to operate within that
framework.10 It is a standard agreement that is not subject to negotiation by individual franchisees.
Under the UFA, a franchisee, subject to some restrictions, pays an initial fee of $500 for the right to provide transportation to and from DFW and Love Field
airports, or a $300 fee for access only to Love Field airport. In addition to the initial franchise fee, the UFA
requires that franchisees pay to SuperShuttle a weekly
system fee—$575 for a Dallas-Fort Worth and Love
Field franchise and $375 for a Love Field franchise.
This flat fee does not change and is not related to the
amount of business that a franchisee generates. The
weekly fee covers the franchise fee, the cost of providing
the Nextel system through which franchisees bid on
routes, and marketing of the SuperShuttle brand. Franchisees also pay a $250 decal fee.
C. Shared-Ride Vehicles
The UFA requires that franchisees purchase or lease a
van that meets the system specifications, i.e., make,
model, color, size, age, and mechanical condition.11 SuperShuttle DFW General Manager Ken Harcrow testified
that the average cost of a passenger van is about
$30,000.12 With regard to van acquisition, Harcrow testified that some franchisees get their own vans or leases,
and that SuperShuttle also has a leasing company, Blue
Van Leasing, to assist franchisees. Franchisees are also
responsible for paying for gas, vehicle maintenance,
10 The UFA notes that “[t]he airport ground transportation business
is a regulated industry and, as a result, there are and will be a substantial amount of restrictions arising from government regulation . . .
These restrictions are not imposed by SuperShuttle, but effectively are
passed along in order to implement the governmental regulatory
scheme.”
11 According to the Franchise Disclosure Document, the vehicle
must seat 8 persons including the driver and be no more than 5 years
old; acceptable models are the Ford Econoline, the Dodge B1500 or
B2500, the Chevy Express, and the GMC Savana.
12 The Franchise Disclosure Document that franchisees receive estimates that the total investment necessary to begin a SuperShuttle franchise is $18,100 to $40,500; this includes the cost of a vehicle, $300–
$500 for the initial franchise fee, $250 for the application of decals, a
security deposit of $1,500 for decals and specialized equipment, and the
first payment of $50 to the weekly airport expense reimbursement fund.

tolls, and access fees. Franchisees park the vans at their
homes, and there are no restrictions on franchisees using
their vans for personal use.
The Airport Contract imposes guidelines regarding essential equipment and vehicle age and condition. For
instance, the Airport Contract requires that all vehicles
have, among other things, an air conditioner, heater, fire
extinguisher, and credit card machine. The Airport Contract also includes detailed provisions regarding the
physical condition of the vehicle; for example, the Contract requires that the vehicles be free of large dents, that
all interior and exterior surfaces be free of dirt and
grease, and that seats be consistent in color and have no
more than two small holes. SuperShuttle dictates that all
vehicles use the Company’s trademarked blue-andyellow paint scheme and logo.
The Airport Contract requires that shared-ride vehicles
must pass a mechanical inspection on two separate occasions during the calendar year. Pursuant to the UFA,
SuperShuttle has the right, without prior notice, to inspect any shared-ride vehicle. SuperShuttle conducts its
own in-house inspection of vehicles every 60 days.
Franchisees must purchase insurance through a designated insurer. Franchisees must obtain licensing approval from DFW Airport, pay a licensing fee, and undergo
background checks. Franchisees must also complete 34
hours of training and 18 hours of on-the-job training.
The Airport Contract requires SuperShuttle to provide 8
hours of customer training in the first week and at least
16 hours per year. This training includes permit qualifications, vehicle requirements, duties and responsibilities
under the Airport Contract, disciplinary guidelines, dress
standards, customer service, and loading area and van
requirements.
All SuperShuttle vans are equipped with a Nextel
communications system owned and operated by SuperShuttle. Part of the franchisees’ weekly fee covers the
cost of operating the Nextel system. Franchisees also
receive a pager, a two-way radio, and a global positioning navigation system, also owned and operated by SuperShuttle. Franchisees may use only equipment, signs,
uniforms, and services approved by SuperShuttle.
D. Franchisees’ Hours, Schedules, and Bid Process
Franchisees set their own work schedules and select
their own assignments; SuperShuttle does not set schedules or routes, nor does it require franchisees to be active
during certain days or hours. Thus, franchisees have
complete control over their schedules. All bidding and
work assignments are handled through the Nextel system. Generally, when a franchisee wants to start work
and pick up an assignment, he can do so by turning on
the Nextel apparatus. Customers can coordinate pickup

 SUPERSHUTTLE DFW, INC.

requests and pay by credit card via the national SuperShuttle website or phone number. Once processed by
SuperShuttle dispatchers, these requests appear on franchisees’ Nextel devices as job “bids” that franchisees can
choose to accept or decline. For each bid, the device
displays the fare amount, the passenger’s name and address, and the pickup time. If the franchisee declines a
bid or fails to respond, the dispatcher will generate another bid for his consideration. Generally, a franchisee
incurs no negative consequences from passing on a trip.
However, if the franchisee accepts a bid, he is required to
complete the pickup or he may be subject to a $50 fine
that is paid to the franchisee who completes the job.
Several bidding variations occur within this general
framework. In “available bidding,” a franchisee will
make himself available in his current location, and the
system will generate a bid within a 20-mile radius. In
“outbound finals bidding,” franchisees who are leaving
the airport enter their final destination, and the system
automatically generates outbound bids near that destination. In “AM bidding,” the dispatcher releases a list of
bids at 7:30 p.m. for the next morning, and franchisees
can pre-select jobs for the following day. In “stand bidding” and “holding lot bidding,” franchisees line up at a
set location, e.g., a hotel stand or a holding lot, and are
offered bids in the order that they are assembled. In all
variations, bids are processed through the Nextel device;
franchisees are not permitted to use any other service or
their personal cell phones to obtain business.
In addition to bidding, franchisees have the option to
drive “hotel circuits,” in which a franchisee is responsible for providing regularly scheduled pickup service at a
hotel. General Manager Harcrow testified that SuperShuttle DFW maintains circuits that service major
hotels in Dallas and Fort Worth. Franchisees who
choose to drive hotel circuits are responsible for creating
pickup schedules and writing bylaws for the route. If a
franchisee is unable to drive his scheduled route, he is
responsible for finding a replacement, with no involvement from SuperShuttle. Finally, a franchisee can run a
charter service, which entails transporting non-airport
passengers from one location to another. Charter jobs
sometimes show up as Nextel bids. Franchisees can also
arrange their own charter jobs, provided that they notify
SuperShuttle at least 2 hours in advance and observe a 2hour charter minimum. There is no record evidence of
franchisees running charter operations. The Airport Contract specifically forbids franchisees from independently
soliciting passengers at the Airport.
The Airport Contract is generally silent as to the specific operating procedures that SuperShuttle and its franchisees employ away from the airport. The Contract

5

does set forth express pickup time goals that SuperShuttle is required to meet: no more than 15 minutes from the
pickup request from 9 a.m. to 9 p.m., and no more than
20 minutes from the request from 9 p.m. to 9 a.m. The
Airport Contract also requires franchisees to provide
every passenger with a receipt, maintain a passenger log,
and operate the vehicle in a “safe and competent manner.”
In all instances, i.e., pickups from the airport, hotels,
and residences, SuperShuttle sets the fares that customers
pay; the fare that appears in the Nextel system is the fare
that the franchisee must charge the customer. Franchisees are required to turn in all receipts, trip sheets, and
vouchers to SuperShuttle on a weekly basis. SuperShuttle then issues each franchisee a reimbursement check for
the fares that he earned in excess of the weekly fees
owed to SuperShuttle. (The administration of billing and
processing of payments by SuperShuttle is one of the
services provided by SuperShuttle pursuant to a franchisee’s weekly service payment.)
E. Fares and Payments
The franchisee is entitled to all fares paid by customers
and does not share the fare with SuperShuttle in any way.
The franchisee’s flat weekly fee does not vary with revenues earned. Passengers may pay in the form of credit
cards, vouchers, coupons, or cash. Franchisees are required to accept SuperShuttle vouchers. Although the
record is unclear as to whether the Company reimburses
them for all vouchers in full, it does appear from the testimony that franchisees are reimbursed in full for complimentary rides and hotel coupons.
According to the UFA, franchisees have the option of
purchasing an a.m., a p.m., or a 24-hour license. The
testimony, however, reflects that regardless of their license, franchisees are unlimited in the hours during
which they can operate.
Franchisees pay their own expenses, which include
gas, tolls, licensing fees, and vehicle maintenance.
F. Franchisee Conduct and Termination
The Airport Contract dictates that all franchisees must
be dressed in a uniform that clearly identifies them as
representatives of SuperShuttle. The Airport Contract
includes various general guidelines for franchisee conduct while on the job, including a requirement that franchisees act in a reasonable, courteous, cooperative, and
professional manner. The Contract includes prohibitions
on, among other things, the use of improper language,
loud boisterous conduct, sleeping on the job, soliciting,
and consuming any food or drink in plain sight. If a
franchisee violates a term of the Airport Contract, the
Airport will assess to SuperShuttle liquidated damages,

 6

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

which are set out in an attachment to the Contract. For
instance, if a franchisee is caught sleeping on Airport
property, SuperShuttle will be assessed $35 for the second offense, $70 for the third offense, and $105 for subsequent incidents.
The UFA includes a list of 25 examples of conduct for
which SuperShuttle can terminate a franchisee without
recourse. These include, among other things, unauthorized use of SuperShuttle marks or trade secrets; failure,
on more than three occasions within the course of the
contract term, to pay fees on a timely basis or comply
with a requirement of the UFA; foreclosure on or repossession of the shared-ride vehicle; suspension or termination of any required license or permit; receipt of an excessive number of complaints, citations, or notices; falsification of trip sheets, credit card receipts, or training or
driving records; use of a relief driver who does not complete the required training or have the mandatory qualifications; and entrance into an employment relationship or
affiliation with a business that is competitive with SuperShuttle. SuperShuttle can also terminate a franchisee
for not complying with the UFA or failing to make any
payments due to SuperShuttle and failing to cure within
3 days after written notice of default. The UFA also
gives SuperShuttle the right to institute a point system,
whereby points are assessed to the franchisee every time
he fails to comply with rules, and accumulation of points
may result in fines and termination. There is no evidence
that SuperShuttle has implemented a points-based progressive discipline system.
G. Additional Terms and Conditions
The UFA requires that the signer of the document (i.e.,
the franchisee) be the principal driver of the vehicle and
that the operation of the vehicle must be under his direct
supervision. The franchisee may use a substitute driver
or relief driver, provided that written notice is provided
to SuperShuttle; the substitute driver is an employee,
agent, shareholder or partner of the franchisee; the substitute driver completes the required training program; and
the substitute driver meets SuperShuttle’s other criteria
for driver eligibility. General Manager Harcrow testified
that SuperShuttle is otherwise not involved in the arrangement between the franchisee and the relief driver.
The franchisee and relief driver enter into an agreement
that governs their relationship, setting forth when the
relief driver will work, what he will be paid, and other
terms and conditions of their arrangement. At the time
of the hearing, one franchisee employed a relief driver.
Franchisees do not have the right to subfranchise.
The UFA includes detailed rules and procedures that a
franchisee must follow if he wishes to transfer, assign or
sell his franchise to another individual. The franchisee

must first notify SuperShuttle in writing of the proposed
transfer, setting forth the name and address of the proposed transferee and the purchase price and payment
terms of the offer. SuperShuttle has a first right of refusal, under which it can notify the franchisee within 30
days that it wishes to accept the transfer for itself at the
price and terms in the notice. If SuperShuttle declines,
the UFA states that SuperShuttle “shall not unreasonably
withhold consent to any transfer” if certain enumerated
conditions are met. These include, among other things,
that all of the franchisee’s outstanding obligations to SuperShuttle have been satisfied; that the proposed transferee is “of good moral character, and possesses the
business experience and capability, credit standing, driving record, health and financial resources necessary to
successfully operate Franchisee’s business in accordance
with the terms of this Agreement”; that the transferee
will execute the standard form of the UFA; that the franchisee must reimburse SuperShuttle for its costs in
providing training to the transferee and for evaluating
and processing the transfer, including legal and administrative fees; and that before the closing, the franchisee
pay a transfer fee to SuperShuttle of the lesser of $500 or
10 percent of the sale price. Vice President Robertson
testified that there were two franchise assignments at
SuperShuttle DFW in 2009.
SuperShuttle does not provide to franchisees any
fringe benefits, sick leave, vacation time, or holiday pay.
In addition, SuperShuttle does not withhold taxes for
franchisees. The Airport Contract requires SuperShuttle
to have all franchisees covered under its insurance policy; specifically, SuperShuttle’s insurance policy must
provide combined single limits of liability for bodily
injury and property damage of no less than $500,000 for
each occurrence for each vehicle. The UFA provides
that the franchisee will reimburse SuperShuttle for the
insurance that it provides at a cost of between $125 and
$200 per week.
Finally, the UFA requires that franchisees agree to indemnify SuperShuttle and hold it harmless “against any
and all liability for all claims of any kind or nature arising in any way out of or relating to the Franchisee’s and
Operator’s actions or failure to act.”
III. THE ACTING REGIONAL DIRECTOR’S DECISION AND THE
CONTENTIONS OF THE PARTIES AND AMICUS ON REVIEW

The Acting Regional Director found that SuperShuttle
met its burden of establishing that the franchisees are
independent contractors and not employees under Section 2(3) of the Act. Citing the Board’s decision in
Roadway Package System, Inc., 326 NLRB at 842, the
Acting Regional Director applied the common-law agency test and assessed “all incidents of the parties’ relation-

 SUPERSHUTTLE DFW, INC.

ship.” In so doing, she noted that, in cases involving the
taxicab industry, the Board has given significant weight
to two factors: “the lack of any relationship between the
company's compensation and the amount of fares collected,” and “the company’s lack of control over the
manner and means by which the drivers conduct business
after leaving the [company’s] garage.” AAA Cab Services, 341 NLRB at 465 (citations omitted). Accordingly, the Acting Regional Director emphasized that here,
(1) franchisees do not share fares with SuperShuttle, and
(2) franchisees operate their vehicles with little control
by SuperShuttle. In so finding, the Acting Regional Director noted that the franchisees “are free to work if they
want and when they want, and have total autonomy in
this respect.” Although the Acting Regional Director
acknowledged some evidence of control by SuperShuttle—including its imposition of fare amounts, its dress
requirements, and its installation of GPS tracking devices—she concluded that SuperShuttle does not exercise
control “over the manner and means” by which the franchisees conduct the actual business of transporting customers.
In finding independent-contractor status, the Acting
Regional Director also assigned significance to the franchisees’ ownership of their vehicles and their “opportunities for loss or gain.” To this end, the Acting Regional
Director found that franchisees face a meaningful risk of
loss in light of the substantial costs that go into owning a
franchise, i.e., vehicle payments, weekly system fees,
insurance costs, gas, maintenance, licensing fees, and
tolls. The Acting Regional Director also found that franchisees “make calculated choices between which trips to
choose,” noting that, because franchisees pay for the
costs of operating their vans, their decisions in choosing
trips affect profit margins. She also stated that “a driver’s determination of when and how much he will work
impacts his profit margin. All drivers take similar risks,
but by their decisions and efforts, they do not all achieve
the same profits.” Finally, she noted that franchisees can
hire a relief driver, which creates the “potential to generate more gross revenue while spending less time driving
when a relief driver is hired.”13
The Union contends that, on review, the Board should
find that the franchisees are employees. Contrary to the
Acting Regional Director, the Union argues that SuperShuttle “exercises substantial control over the drivers’
daily performance.” For example, the Union emphasizes
that SuperShuttle unilaterally promulgates the UFA, re13 Although the Acting Regional Director made fact findings regarding the Airport Contract, the existence of regulatory control by the
Airport Board did not factor heavily in her analysis or her conclusion
that the franchisees were independent contractors.

7

quires that franchisees display the SuperShuttle logo on
their vehicles, imposes strict rules regarding uniforms
and appearance, requires franchisees to attend training,
can fine franchisees if they decline certain mandatory
assignments, can unilaterally change the type of van that
franchisees are permitted to use, and can discipline and
terminate franchisees for various transgressions. The
Union also notes that franchisees perform a regular and
essential part of SuperShuttle’s business; are prohibited
from working for SuperShuttle’s competitors; play no
role in soliciting passengers and arranging pickups; do
not have any special skills or expertise; must acquire
Nextel systems, logo decals, and uniforms from SuperShuttle; and are not permitted to modify fares to get
more business. As to entrepreneurial opportunities, the
Union notes that franchisees are not permitted to operate
more than one route or vehicle, and that franchisees’
ability to assign or sell the routes is constrained by the
terms of the UFA.
SuperShuttle agrees with the Acting Regional Director’s holding that the franchisees are independent contractors. In addition to the factors that the Acting Regional Director addressed, SuperShuttle argues that State
regulatory control over the franchisees, which is effectuated through the Airport Contract, is more extensive than
set forth in the decision. Specifically, it states that the
Airport Contract requires franchisees to wear a uniform,
keep records, and submit vehicles for inspection. Accordingly, such requirements are evidence of control by
the State, not SuperShuttle. SuperShuttle also emphasizes that franchisees have “unfettered entrepreneurial freedom,” as evidenced by their complete control over selecting bids, setting hours, and selecting the type of work
they do. SuperShuttle also points to franchisees’ substantial investment in their vans and associated business
costs, as well as the fact that the parties agreed to enter
an independent-contractor relationship, in which franchisees can incorporate as independent entities. Finally,
SuperShuttle does not provide benefits or withhold taxes.
IV. DISCUSSION
A. Overruling the Board’s FedEx Decision
The Board majority’s decision in FedEx did far more
than merely “refine” the common-law independentcontractor test—it “fundamentally shifted the independent contractor analysis, for implicit policy-based reasons,
to one of economic realities, i.e., a test that greatly diminishes the significance of entrepreneurial opportunity
and selectively overemphasizes the significance of ‘right
to control’ factors relevant to perceived economic dependency.” FedEx Home Delivery, 361 NLRB at 629

 8

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

(Member Johnson, dissenting). Today, we overrule this
purported “refinement.”14
The FedEx Board begins its alteration of the independent-contractor test with a classic straw-man analysis of
the D.C. Circuit’s description of entrepreneurial opportunity in FedEx I. As previously stated, the court, following its review of the Board’s and the court’s independent-contractor jurisprudence, concluded that, “while
all the considerations of common law remain in play, an
important animating principle by which to evaluate those
factors . . . is whether the position presents the opportunities and risks inherent in entrepreneurialism.” FedEx I,
563 F.3d at 497. This statement of the law is fully consistent with Board precedent and affirms that all the
common-law factors “remain in play.” But the FedEx
Board majority, in its attempt to discredit the court’s
analysis of whether the common-law factors demonstrate
that the drivers possess entrepreneurial opportunity, inflated the court’s holding, finding that the court “treats
the existence of ‘significant entrepreneurial opportunity’
as the overriding consideration in all but the clearest
cases” and as the “single animating principle in the inquiry.” 361 NLRB at 617–618 (emphasis added). Relying on this hyperbolic misreading of the court’s description of entrepreneurial opportunity, the Board purported
to “refine” the independent-contractor test by confining
the significance of entrepreneurial opportunity to “one
aspect of a relevant factor that asks whether the evidence
tends to show that the putative contractor is, in fact, rendering services as part of an independent business.” Id.
at 620 (emphasis in original). Thus, rather than considering the entrepreneurial opportunity, if any, afforded a
putative contractor by the common-law factors, the
Board limited that inquiry to a single aspect of a newly
coined factor, thereby altering the test and greatly diminishing the significance of entrepreneurial opportunity to
the analysis.
14 We do not suggest that the Board cannot refine or clarify its independent-contractor analysis, as it did in Roadway and as we do here
today. Instead, we find that the FedEx majority’s purported “refinement” was an impermissible (or at least an unwarranted) diminution of
the importance of entrepreneurial opportunity for the reasons discussed
below.
Our dissenting colleague complains that the Board is overruling
precedent here without public notice and an invitation to file briefs.
We dismiss this claim for several reasons. First, the FedEx majority
promulgated its “refinement” to the independent-contractor test without
public notice or invitation to file briefs. Our decision here to undo this
refinement, by the FedEx majority’s own example, requires no such
action. Second, as the Board has noted, it has on many occasions overruled or modified precedent without supplemental briefing. See, e.g.,
The Boeing Co., 365 NLRB No. 154, slip op. at 21 (2017), and cases
cited. Finally, to the extent FedEx represents precedent, it is, at 4 years
old, hardly “longstanding.”

Contrary to the FedEx Board majority’s and our dissenting colleague’s claim that entrepreneurial opportunity was the FedEx I court’s “overriding consideration,”
the court noted that an emphasis on entrepreneurial opportunity “does not make applying the test mechanical.”
563 F.3d at 497. Indeed, the court applied and considered all of the relevant common-law factors, including
whether the parties believe they are creating a master/servant relationship, the extent of the employer’s control over details of the work, the extent of employer supervision, and who supplies the instrumentalities for doing the work, before concluding that, “on balance, . . .
they favor independent contractor status.” Id. at 504.
See also FedEx II, 849 F.3d at 1128 (rejecting Board
majority’s contention that the FedEx I court did not consider and weigh all common-law factors).
In sum, we do not find that the FedEx I court’s decision departed in any significant way from the Board’s
traditional independent-contractor analysis, and we therefore find that the FedEx Board’s fundamental change to
the common-law test in reaction to the court’s decision
was unwarranted. The court acknowledged that “the tenfactor test is not amenable to any sort of bright-line rule”
and that “‘there is no shorthand formula or magic phrase
that can be applied to find the answer, but all the incidents of the relationship must be assessed and weighed
with no one factor being decisive.’” 563 F.3d at 496
(quoting United Insurance Co., 390 U.S. at 258). The
court followed that guidance. The court further noted
that the Board’s and the court’s evolving emphasis on
entrepreneurial opportunity was a “subtle refinement . . .
done at the Board’s urging,” and it reiterated that “all the
considerations at common law remain in play.” Id. at
497. Thus, no “refinement” of the court’s analysis was
required. Indeed, while courts afford the Board substantial deference in matters requiring application of special
expertise when interpreting the Act, “a determination of
pure agency law involve[s] no special administrative
expertise that a court does not possess.” United Insurance Co., 390 U.S. at 991. As the D.C. Circuit pointedly
remarked in FedEx II when rejecting the Board’s deference argument in support of the FedEx majority standard
at issue here, “We do not accord the Board such breathing room when it comes to new formulations of the legal
test to be applied.” 849 F.3d at 1128.
Moreover, we reject the characterization of the FedEx
decision as mere “refinement” because, as former Member Johnson explained in detail in his dissent in FedEx,
the majority shifted the independent-contractor test to
one of “economic dependency,” a test that was specifi-

 SUPERSHUTTLE DFW, INC.

cally rejected by Congress.15 FedEx Home Delivery, 361
NLRB at 629–634 (Member Johnson, dissenting). In
NLRB v. Hearst Publications, 322 U.S. 111 (1944), the
Supreme Court articulated a policy-based economic realities test for determining independent-contractor status
in cases involving New Deal social legislation. As the
Court explained in U.S. v. Silk, 331 U.S. 704 (1947),
[t]he problem of differentiating between employee and
an independent contractor or between an agent and an
independent contractor has given difficulty through the
years before social legislation multiplied its importance. When the matter arose in the administration
of the National Labor Relations Act, 29 U.S.C.A. s 151
et seq., we pointed out that the legal standards to fix responsibility for acts of servants, employees or agents
had not been reduced to such certainty that it could be
said there was “some simple, uniform and easily applicable test.” The word “employee,” we said, was not
there used as a word of art, and its content in its context
was a federal problem to be construed “in the light of
the mischief to be corrected and the end to be attained.”
We concluded that, since that end was the elimination
of labor disputes and industrial strife, “employees” included workers who were such as a matter of economic
reality. The aim of the Act was to remedy the inequality of bargaining power in controversies over wages,
hours and working conditions. We rejected the test of
the “technical concepts pertinent to an employer’s legal
responsibility to third persons for the acts of his servants.” This is often referred to as power of control,
whether exercised or not, over the manner of performing service to the industry. Restatement of the Law,
Agency, s 220. We approved the statement of the National Labor Relations Board that “the primary consideration in the determination of the applicability of the
statutory definition is whether effectuation of the declared policy and purposes of the Act comprehend securing to the individual the rights guaranteed and protection afforded by the Act.”16
15 United Insurance Co., 390 U.S. at 256. The FedEx majority’s
limitation of the significance of entrepreneurial opportunity to a single
aspect of whether the contractor rendered services as part of an independent business derived directly from former Member Liebman’s
dissent in St. Joseph News-Press, 345 NLRB at 484 (Member Liebman,
dissenting), where she wrote: “[I]t is entirely appropriate to examine
the economic relationship between the [r]espondent and the carriers to
determine whether the carriers are economically independent business
people, or substantially dependent on the [r]espondent for their livelihood.” Notably, the FedEx majority overruled St. Joseph News-Press
“as inconsistent with the view articulated today.” 361 NLRB at 621.
16 331 U.S. at 713.

9

In the Taft-Hartley amendments of 1947, Congress reacted to this expansive alternative to the common-law
test by specifically excluding independent contractors
from coverage under the Act. In subsequent cases, the
Supreme Court recognized that Congress had effectively
abrogated the holdings of Hearst and Silk to the extent
they authorized policy-based alternatives to the commonlaw agency test of employee and independent-contractor
status in the absence of express statutory language. See,
e.g., Nationwide Mutual Insurance Co. v. Darden, 503
U.S. 318, 324–325 (1992) (“In each case, the Court read
‘employee’ to imply something broader than the common-law definition; after each opinion, Congress amended the statute so construed to demonstrate that the usual
common-law principles were the keys to meaning.”). In
short, the FedEx majority’s reformulation of the independent-contractor analysis impermissibly revives an
“economic dependency” standard that Congress has explicitly rejected.
In addition, the FedEx majority’s emphasis on drivers’
“economic dependency” on the employer makes no
meaningful distinction between FedEx drivers and any
sole proprietor of a small business that contracts its services to a larger entity. Large corporations such as FedEx or SuperShuttle will always be able to set terms of
engagement in such dealings, but this fact does not necessarily make the owners of the contractor business the
corporation’s employees.
Properly understood, entrepreneurial opportunity is not
an independent common-law factor, let alone a “superfactor” as our dissenting colleague claims we and the
D.C. Circuit treat it. Nor is it an “overriding consideration,” a “shorthand formula,” or a “trump card” in the
independent-contractor analysis. Rather, as the discussion below reveals, entrepreneurial opportunity, like employer control, is a principle by which to evaluate the
overall effect of the common-law factors on a putative
contractor’s independence to pursue economic gain.
Indeed, employer control and entrepreneurial opportunity
are opposite sides of the same coin: in general, the more
control, the less scope for entrepreneurial initiative, and
vice versa. Moreover, we do not hold that the Board
must mechanically apply the entrepreneurial opportunity
principle to each common-law factor in every case. Instead, consistent with Board precedent as discussed below, the Board may evaluate the common-law factors
through the prism of entrepreneurial opportunity when
the specific factual circumstances of the case make such
an evaluation appropriate.17
17 Our dissenting colleague claims that we insist that we are “free to
adjust [our] test whenever and however [we] like.” To the contrary, we
simply observe that the Board will not mechanically apply the principle

 10

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

The Board has long considered entrepreneurial opportunity as part of its independent-contractor analysis.18
But, as the D.C. Circuit has recognized, the Board has
over time (particularly since Roadway) shifted its perspective to entrepreneurial opportunity as a principle by
which to evaluate the significance of the common-law
factors, as demonstrated by the nonexhaustive discussion
of relevant Board precedent that follows.
In Roadway, the Board, in finding that the disputed
drivers were employees rather than independent contractors, devoted much of its analysis section to the evaluation of how certain common-law factors limited the drivers’ entrepreneurial opportunity for gain or loss. See 326
NLRB at 851–853. For example, the Board found that
obstacles created by the employer through its demanding
schedules for the drivers and detailed specifications for
the drivers’ trucks effectively prevented drivers from
taking on additional business during their off hours and
therefore limited the “entrepreneurial independence” that
ownership of their trucks may have otherwise provided
them. See id. at 851 & fn. 36 (“[The employer] has
simply shifted certain capital costs to the drivers without
providing them with the independence to engage in entrepreneurial opportunities.”). In addition, the Board
found that the drivers’ ability to increase their “entrepreneurial profit” through their own “efforts and ingenuity”
was limited by the employer’s control over their routes,
the number of packages and stops on their routes, and the
prices charged to customers, and that the employer’s
compensation system provided “an important safety net
for the fledging driver to shield him from loss.” See id.
at 852–853. Finally, the Board found that the employer’s
“considerable control” over the drivers’ ability to sell
their routes limited the possibility of the drivers “influof entrepreneurial opportunity where it does not apply, i.e., when the
factual circumstances of a case render entrepreneurial opportunity
irrelevant to a particular common-law factor or factors. But, in every
case, the Board will evaluate the overall effect of the common-law
factors on a putative contractor’s independence to pursue economic
gain.
18 See, e.g., Roadway Package System, 288 NLRB 196, 198 (1988)
(Roadway I) (finding that the drivers “[bore] few of the risks and enjoy[ed] little of the opportunities for gain associated with an entrepreneurial enterprise” where the employer controlled the number of packages and stops for each driver and their service areas, did not give
drivers a proprietary interest in their service areas, and utilized a compensation system that effectively balanced the drivers’ incomes);
Standard Oil Co., 230 NLRB 967, 971 (1977) (finding that the employer controlled “all meaningful decisions of an entrepreneurial nature
which affect profit or risk of loss” where the employer unilaterally
determined the drivers’ compensation and delivery territories, the prices of the products, and the customers to whom they could deliver).

enc[ing] their profits like entrepreneurs” through their
proprietary interests in their routes.19
In other cases, the Board has found that certain common-law factors significantly supported independentcontractor status because they provided workers with the
entrepreneurial opportunity for gain or loss. In Dial-AMattress, the companion case to Roadway, the Board, in
finding that the drivers were independent contractors,
emphasized that the drivers had significant entrepreneurial opportunity for gain or loss where they could own
multiple trucks and hire their own employees without
being subject to control or requirements of the employer,
they were not guaranteed minimum compensation, they
could decline orders, and they were not required to provide delivery services on every workday. See 326 NLRB
at 891. In St. Joseph News-Press, the Board found that
the conditions “enabl[ed] carriers to take economic risk
and reap a corresponding opportunity to profit from
working smarter, not just harder” where the carriers
could hire full-time substitutes over whom they had
complete control, hold contracts on multiple routes, deliver other products (including for competitors) while
making deliveries for the employer, and solicit new customers. See 345 NLRB at 479 (internal quotations omitted).20
Our dissenting colleague argues that the Board has
merely considered the presence of entrepreneurial opportunity as an aspect of the “method of compensation” factor when citing it in support of an independent-contractor
finding and has generally cited the absence of entrepreneurial opportunity as support for finding employee status. As demonstrated by the discussion above, however,
19 See also Corporate Express Delivery Systems, 332 NLRB 1522,
1522 (2000) (finding that the drivers had “no significant opportunity for
entrepreneurial gain or loss” where the employer determined the routes,
the base pay, and the amount of freight on each route, and did not allow
the drivers to add or reject customers), enfd. 292 F.3d 777 (D.C. Cir.
2002); Slay Transportation Co., 331 NLRB 1292, 1294 (2000) (finding
that the drivers did “not have a significant entrepreneurial opportunity
for financial gain or loss” where the employer controlled the drivers’
rates of compensation and the prices charged to the customers, and that
despite the “theoretical potential for entrepreneurial opportunity” that
came with the drivers’ ability to hire their own drivers, the evidence did
not demonstrate any resulting “economic gain” given the employer’s
control).
20 See also Arizona Republic, 349 NLRB 1040, 1044–1045 (2007)
(finding that the carriers had entrepreneurial potential to increase their
income where they could use full-time substitutes, hold contracts on
multiple routes, deliver other newspapers, negotiate the piece rate for
delivering the employer’s newspaper, solicit new customers, and receive tips); Argix Direct, Inc., 343 NLRB 1017, 1020–1021 (2004)
(finding that some of the employer’s drivers were entrepreneurs who
owned multiple trucks and hired their own drivers and that all of the
drivers could “choose to maximize or minimize their income” because
they set their own schedules and therefore chose when and when not to
work).

 SUPERSHUTTLE DFW, INC.

the Board has never thus limited its consideration of entrepreneurial opportunity but has evaluated a number of
other common-law factors to determine whether workers
in a given case were provided opportunities for economic
gain.
Moreover, we reject our colleague’s suggestion that
the Board has not previously evaluated entrepreneurial
opportunity in a manner consistent with our decision
today. Rather, as discussed above, the Board has found
that specific common-law factors may or may not
demonstrate entrepreneurial opportunity depending on
the overall circumstances of the case.21 Going forward,
we will continue to consider how the evidence in a particular case, viewed (as it must be) in light of all the
common-law factors, reveals whether the workers at issue do or do not possess entrepreneurial opportunity.22
Our cases simply do not support the FedEx majority’s or
our dissenting colleague’s attempt to cabin consideration
of entrepreneurial opportunity to one aspect of a single
factor.
As a more general matter, our dissenting colleague
claims that our approach is inconsistent with the common-law agency test. In support, she argues that “if the
common-law agency test has a core concept, it is . . .
‘control.’” However, as she acknowledges, the Roadway
Board rejected the “proposition that those factors which
do not include the concept of ‘control’ are insignificant
when compared to those that do.” 326 NLRB at 850.
Moreover, the Restatement expressly recognizes that a
master-servant relationship can exist in the absence of
the master’s control over the servant’s performance of
work. See Restatement (Second) of Agency § 220 cmt. d
(“[T]he full-time cook is regarded as a servant although it
is understood that the employer will exercise no control
over the cooking.”). But most importantly, the Board’s
subtle shift in emphasis from control to entrepreneurial
opportunity, which the D.C. Circuit first recognized and
we explicitly acknowledge today, did not fundamentally
alter the Board’s independent-contractor analysis. As
stated, control and entrepreneurial opportunity are two
sides of the same coin: the more of one, the less of the
other. Indeed, entrepreneurial opportunity often flowers
where the employer takes a “hands off” approach. At the
21 For example, in some cases, vehicle ownership provides the driver
with significant entrepreneurial opportunity. Dial-a-Mattress, supra.
Under other facts, vehicle ownership provides no such opportunity.
Roadway, supra.
22 We acknowledge that the Board’s precedent in this area, like in
many areas, has not been entirely consistent. See FedEx I, 563 F.3d at
498 (“[T]he Board's language has not been as unambiguous as this
court's binding statement.”). Today’s decision is intended to eliminate
any ambiguity over how to treat entrepreneurial opportunity in the
Board’s independent-contractor analysis in the future.

11

end of the day, the Board has simply shifted the prism
through which it evaluates the significance of the common-law factors to what the D.C. Circuit has deemed a
“more accurate proxy” to “‘capture[] the distinction between an employee and an independent contractor.’” See
FedEx I, 563 F.3d at 497 (citing Corporate Express Delivery Systems v. NLRB, 292 F.3d 777, 780 (2002)). As
the D.C. Circuit has made clear, the Board’s independent-contractor analysis is qualitative, rather than strictly
quantitative; thus, the Board does not merely count up
the common-law factors that favor independent contractor status to see if they outnumber the factors that favor
employee status, but instead it must make a qualitative
evaluation of those factors based on the particular factual
circumstances of each case. See FedEx I, 563 F.3d at
497 fn. 3. Where a qualitative evaluation of commonlaw factors shows significant opportunity for economic
gain (and, concomitantly, significant risk of loss), the
Board is likely to find an independent contractor.
Our dissenting colleague further claims that our approach is inconsistent with the Supreme Court’s decision
in United Insurance. To the contrary, we will continue
to adhere, as we must, to the Court’s decision, considering all of the common-law factors in the total factual
context of each case and treating no one factor (or the
principle of entrepreneurial opportunity) as decisive.
And where the common-law factors, considered together,
demonstrate that the workers in question are afforded
significant entrepreneurial opportunity, we will likely
find independent-contractor status. Thus, our approach
is faithful to United Insurance and the common-law
agency test that it requires.23
In conclusion, we find that the Board majority in FedEx, based on a mischaracterization of the D.C. Circuit’s
opinion in FedEx I, impermissibly altered the Board’s
traditional common-law test for independent contractors
by severely limiting the significance of entrepreneurial
23 We do not find our dissenting colleague’s citation of Alexander v.
FedEx Ground Package System, Inc., 765 F.3d 981 (9th Cir. 2014), to
be persuasive because in that case, the court applied the California state
law standard for determining employee status, which, as the California
Supreme Court has explained, is “not inherently limited by common
law principles” but, rather, “must be construed with particular reference
to the history and fundamental purposes of the statute.” S.G. Borello &
Sons, Inc. v. Department of Industrial Relations, 769 P.2d 399, 405
(Cal. 1989) (internal quotations omitted); see also Alexander, 765 F.3d
at 992 (“The Borello court noted that the ‘“control-of-work-details” test
for determining [employee status] must be applied with deference to the
purposes of the protective legislation.’”) (quoting Borello, 769 P.2d at
406) (alteration in Alexander); FedEx Home Delivery, 361 NLRB at
631 fn. 11 (Member Johnson, dissenting) (explaining that while the
California standard considers secondary indicia that overlap with the
common-law factors in the Restatement, it is not the equivalent of the
common-law test that the Board must apply but is, instead, “a variant of
the policy-based economic realities test of Hearst [and] Silk”).

 12

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

opportunity to the analysis. We therefore overrule the
Board's FedEx decision and return the Board’s independent-contractor test to its traditional common-law roots.
B. Applying the Common-Law Factors
Applying the Board’s traditional common-law factor
test to the facts of this case, we find, in agreement with
the Acting Regional Director, that SuperShuttle franchisees are independent contractors. Like most entrepreneurs or small business owners, SuperShuttle franchisees
make a significant initial investment in their business by
purchasing or leasing a van and entering into a Unit
Franchise Agreement that requires certain payments,
including an initial fee and a weekly flat fee. Like small
business owners, franchisees have nearly unfettered opportunity to meet and exceed their weekly overhead: with
total control over their schedule, they work as much as
they choose, when they choose; they keep all fares they
collect, so the more they work, the more money they
make; and they have discretion over the bids they choose
to accept, so they can weigh the cost of a particular trip
(in terms of time spent, gas, and tolls) against the fare
received. As explained in more detail below, these factors (i.e., extent of control by employer, method of compensation, and ownership of principal instrumentality),
which demonstrate that the franchisees have significant
opportunity for economic gain and significant risk of
loss, strongly support finding independent-contractor
status, and they are not outweighed by any countervailing factors supporting employee status.
i. Extent of control by the employer
As the Acting Regional Director found, the Board has
held that the control exerted by an employer “over the
manner and means by which drivers conduct[] business”
is one of two factors given significant weight in the taxicab industry. AAA Cab Services, 341 NLRB at 465.
Stated differently, the fact that an employer does not exercise control over the manner and means by which drivers conduct business may reliably signal the existence of
significant entrepreneurial opportunity. We agree with
the Acting Regional Director’s finding that the sharedride industry is an extension of the taxicab industry and
that this factor should be afforded significant weight.
As noted above, SuperShuttle franchisees are free from
control by SuperShuttle in most significant respects in
the day-to-day performance of their work. Franchisees
have total autonomy to set their own work schedule.
They merely turn on their Nextel device and wait for the
next bid offer. Once a trip is offered, franchisees, except

in very limited circumstances,24 can decide whether to
accept the trip or not. Further, when a franchisee wishes
to take a break or end the work day, he merely turns off
his Nextel device. Other than the receipt of data from the
Nextel device, there is little record evidence of communication between a franchisee and SuperShuttle during
day-to-day operations. Franchisees’ discretion in deciding when to work and which trips to accept weighs in
favor of independent-contractor status. AAA Cab Services, 341 NLRB at 465.25
In addition, franchisees are largely free to choose
where they work. Although they are practically limited
to the Dallas-Fort Worth area, SuperShuttle does not
impose any restrictions or control over where franchisees
work within that area. Franchisees have no set routes
and are not confined to any specific region of the DallasFort Worth area. Thus, the absence of control over franchisees’ routes affords franchisees considerable opportunity and independence during those times they choose
to work. This geographic freedom is indicative of independent-contractor status. Id.
Franchisees are required under the UFA to indemnify
SuperShuttle and hold it harmless “against any and all
liability for all claims of any kind or nature arising in any
way out of or relating to the Franchisee’s and Operator’s
actions or failure to act.” Such indemnification greatly
lessens SuperShuttle’s motivation to control a franchisee’s actions, since SuperShuttle is not liable for a franchisee’s negligent or intentionally harmful acts. This
fact weighs in favor of independent-contractor status.
Dial-A-Mattress, 326 NRLB at 891 (“[I]n employment
relationships, employers generally assume the risk of
third-party damages, and do not require indemnification
from their employees.”).26
24 The record indicates that franchisees can be asked to bid on a trip
that no one else has accepted. The Petitioner presented evidence that,
in one instance, a trip was forced into a franchisee’s Nextel and that
when the franchisee refused the trip, he was fined $50.
25 In an effort to minimize the franchisees’ freedom to choose when
they work, how long they work, and which trips they accept, our dissenting colleague makes much of the fact that the franchisees must use
the Nextel device to accept trips. However, the Nextel device does not
allow SuperShuttle to exercise control over the franchisees. Instead, it
is simply the mechanism that SuperShuttle uses to transfer the passengers’ trip reservations to the franchisees. Without such a transfer
mechanism, SuperShuttle’s operation would be all for naught, as the
franchisees would not know who to pick up, when and where to pick
them up, and where to take them. Because the franchisees decide when
to turn on the Nextel device and what trips to accept, the Nextel device
does not allow SuperShuttle to control their work.
26 Our dissenting colleague distinguishes the present case from DialA-Mattress by pointing out that the Airport Contract requires SuperShuttle to have all franchisees covered under its insurance policy.
While that is correct, it proves nothing because the Airport Contract
does not require that SuperShuttle have the franchisees agree to indem-

 SUPERSHUTTLE DFW, INC.

Although franchisees enjoy broad latitude in controlling their daily work, they are subject to certain requirements. The Airport Contract requires franchisees to wear
a uniform and maintain certain grooming standards.
Franchisees must display the SuperShuttle decals and
markings on their vans, and they must maintain the interior condition of the vans, including the number of seats.
DFW Airport has the right to inspect vans operated by
SuperShuttle and to audit SuperShuttle’s compliance
with the Airport Contract. But these requirements are
not evidence of SuperShuttle’s control over the manner
and means of doing business because they are imposed
by the state-run DFW Airport. AAA Cab Services, 341
NLRB at 465; Don Bass Trucking Co., 275 NLRB 1172,
1174 (1985) (“Government regulations constitute supervision not by the employer but by the state.”) (internal
citations omitted). Thus, these controls do not mitigate
the substantial weight of the factors supporting independent-contractor status.
Fares received by franchisees are set by SuperShuttle,27 and franchisees must accept vouchers and coupons.
SuperShuttle requires more frequent vehicle inspections
than the Airport Contract, and franchisees are required to
display a “How am I driving?” sticker on their vehicle.
SuperShuttle also requires some additional training.
However, we find that these limited employer controls
are vastly outweighed by the general control that franchisees have over their working conditions, including
scheduling and selecting bids.28 In short, this factor
weighs heavily in favor of independent-contractor status.
ii. Method of payment
The method of payment is the second factor to which
the Board has traditionally given significant weight in the
taxicab industry. AAA Cab Services, 341 NLRB at 465;
Elite Limousine Plus, 324 NLRB at 1001. As noted
nify it and hold it harmless against any and all liability. The Airport
Contract allows for SuperShuttle to assume the risk of third-party damages, and the fact that SuperShuttle shifts that risk to franchisees
weighs in favor of independent-contractor status.
27 As a practical matter, fares are set by the competitive airport
transportation market, so even if franchisees could negotiate their own
fares, those fares are unlikely to vary significantly from SuperShuttle’s
fares.
28 Our dissenting colleague emphasizes that the UFA requires franchisees “not to deviate from the standards, specifications and operating
procedures” in it. However, she has not explained how those “standards, specifications and operating procedures” significantly exceed the
requirements in the Airport Contract, which, as government regulations, are not evidence of SuperShuttle’s control. As discussed above,
the UFA itself states that many restrictions imposed by the Airport
Contract are effectively passed along in the UFA. Overall, we simply
have not found that the UFA’s requirements exceed the requirements of
the Airport Contract to such an extent that they outweigh the significant
evidence, discussed above, of the franchisees’ control over their work.

13

above, franchisees pay a monthly flat fee pursuant to the
UFA, and their monthly fee does not vary based on revenues earned. They are entitled to all fares they collect
from customers, and they do not share the fares in any
way with SuperShuttle. When an employer does not
share in a driver’s profits from fares, the employer lacks
motivation to control or direct the manner and means of
the driver’s work. Metropolitan Taxicab Board of Trade,
342 NLRB 1300, 1309–1310 (2004). Moreover, the
franchisees’ freedom to keep all fares they collect, coupled with their unfettered freedom to work whenever
they want, provides them with significant entrepreneurial
opportunity. Thus, the Board has found that “the lack of
any relationship between the company’s compensation
and the amount of fares collected” supports a finding that
franchisees are independent contractors.
iii. Instrumentalities, tools, and place
of work
The primary instrumentalities of franchisees’ work are
their vans and the Nextel dispatching system. As noted,
franchisees purchase their vans, an investment of
$30,000 or more, or they lease their vans, also a significant investment. The Nextel devices are a part of the
franchise agreement, and franchisees pay for them as part
of their weekly fee. In addition, franchisees pay for gas,
tolls, repairs, and any other costs associated with operating their vans. Franchisees’ full-time possession of their
vans facilitates their ability to work whenever and wherever they choose.29 These factors weigh in favor of independent-contractor status.
iv. Supervision
Franchisees are not generally supervised by SuperShuttle. The evidence shows that the only daily
communication between SuperShuttle and the franchisees occurs through the Nextel dispatch system. Because franchisees have the right to accept or decline any
bid, SuperShuttle, through the Nextel system, does not
“assign” routes to franchisees or perform any other supervisory role. SuperShuttle may fine a franchisee $50
for accepting a bid and then later declining it. The $50 is
given to the franchisee who picks up the previously de29 We acknowledge that the UFA’s prohibition on franchisees entering into business relationships with SuperShuttle’s competitors limits to
some extent the potential for entrepreneurial opportunity that would
otherwise come with ownership of their vans. However, that limitation
is mitigated by the fact that SuperShuttle does not limit its hours of
service and that the franchisees can drive for SuperShuttle whenever
and for as long as they choose. Thus, the franchisees do not need the
option to work for SuperShuttle’s competitors to maximize their entrepreneurial opportunity to the same extent that they would need that
option if SuperShuttle’s hours of service were limited or if SuperShuttle
limited the number of hours that they could drive.

 14

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

clined trip. There was also evidence that, on one occasion, SuperShuttle forced a trip into a franchisee’s Nextel
and that, when the franchisee declined the trip, he was
fined $50.
Franchisees’ near-absolute autonomy in performing
their daily work without supervision supports a finding
that they are independent contractors. The few minor
and isolated fines do not diminish the force of that conclusion.
v. The relationship the parties believed they created
The UFA states unequivocally, in bold, capital letters:
FRANCHISEE IS NOT AN EMPLOYEE OF
EITHER SUPERSHUTTLE OR THE CITY
LICENCEE. In Article O of the UFA, “Relationship of
Parties,” the agreement further states: IT IS
ACKNOWLEDGED THAT THE FRANCHISEE IS
THE INDEPENDENT OWNER OF ITS BUSINESS.
These provisions leave little doubt as to the intention of
the parties to create an independent-contractor relationship between SuperShuttle and its franchisees.
As the Acting Regional Director found, two other factors support this conclusion. SuperShuttle does not provide franchisees with any benefits, sick leave, vacation
time, or holiday pay. Further, SuperShuttle does not
withhold taxes or make any other payroll deductions
from franchisees’ pay. Finally, the record shows that
five franchisees entered into the franchise agreement as
corporations. Such a relationship is rare in employeremployee relationships and is associated with independent-contractor status. In short, this factor supports finding that franchisees are independent contractors.
vi. Engagement in a distinct business; work as part of
the employer’s regular business; the principal’s business
As the Acting Regional Director noted, these three factors are closely related. Certain specialized occupations
are commonly performed by individuals in business for
themselves, and workers in such occupations are usually
deemed independent contractors. In this case, driving is
not considered a distinct occupation. In addition, SuperShuttle is clearly involved in the business of transporting customers, and its revenue comes from providing
that service. Thus, these related factors weigh in favor of
employee status.
vii. Length of employment
Generally, a longer employment relationship indicates
employee status. In this case, the Unit Franchise Agreement is a one-year contract. On this basis, the Acting
Regional Director found that this factor favored independent-contractor status. Although the UFA is a oneyear contract, the evidence shows that most franchisees

renew their agreements yearly. Under these circumstances, we find that this factor is neutral.
viii. Skills required
As the Acting Regional Director found, the record
does not indicate that franchisees have any particular
skill or require any specialized training. This factor favors finding employee status. Prime Time Shuttle International, 314 NLRB 838, 840 (1994).
C. Conclusion
Having considered all of the common-law factors, we
find, in agreement with the Acting Regional Director,
that SuperShuttle established that its franchisees are independent contractors. Franchisees’ ownership (or lease)
and control of their vans, the principal instrumentality of
their work, the nearly complete control franchisees exercise over their daily work schedules and working conditions, and the method of payment, where franchisees pay
a monthly fee and keep all fares they collect, all weigh
strongly in favor of independent-contractor status.
Moreover, these three factors provide franchisees with
significant entrepreneurial opportunity and control over
how much money they make each month. Further, we
emphasize again that the shared-ride industry is an extension of the taxicab industry,30 and that in taxicab cases,
the Board has particularly focused on the company’s
“control over the manner and means by which the drivers
conduct[] business” and “the relationship between the
company’s compensation and the amounts of fares collected.” AAA Cab Services, 341 NLRB at 465 (citing
Elite Limousine Plus, 324 NLRB at 1001); City Cab Co.,
285 NLRB at 1193.31 Thus, our findings that SuperShuttle has little control over the means and manner of the
franchisees’ performance while they are actually driving
and that SuperShuttle’s compensation is not related at all
to the amounts of fares collected by the franchisees, and
conversely, that these facts provide franchisees with significant entrepreneurial opportunity, strongly point toward independent-contractor status. In addition, the absence of supervision of franchisees and the understanding between parties that franchisees are independent operators, as clearly expressed in the Unit Franchise
Agreement, also weigh in favor of independentcontractor status. Although the skill required as a franchisee, the fact that driving is not a distinct occupation,
and SuperShuttle’s involvement in the business all weigh
in favor of employee status, we agree with the Acting
Regional Director that these factors are relatively less
Our dissenting colleague does not dispute this finding.
Our dissenting colleague does not dispute or take issue with this
taxicab precedent.
30
31

 SUPERSHUTTLE DFW, INC.

significant and do not outweigh those factors that support
independent-contractor status.
ORDER
The petition is dismissed.
Dated, Washington, D.C. January 25, 2019
______________________________________
John F. Ring,
Chairman
______________________________________
Marvin E. Kaplan,
Member
________________________________________
William J. Emanuel
Member
(SEAL)

NATIONAL LABOR RELATIONS BOARD

MEMBER MCFERRAN, dissenting.
Until 2005, SuperShuttle DFW treated its drivers as
employees. It then implemented a franchise model, supposedly transforming the drivers into independent contractors. Today, the majority finds that this initiative
succeeded, at least for purposes of the National Labor
Relations Act. To reach that finding, the majority
wrongly overrules the Board’s 2014 FedEx decision,1
without public notice and an invitation to file briefs.2
But under any reasonable interpretation and application
of the common-law test for determining employee status—which everyone agrees is controlling—the SuperShuttle drivers are, in fact, employees. The drivers
perform work that is the core part of SuperShuttle’s
1 FedEx Home Delivery, 361 NLRB 610 (2014), enf. denied 849
F.3d 1123 (D.C. Cir. 2017).
2 The current majority has routinely broken with established Board
practice in this respect, at the cost of public participation and fullyinformed decision making. See, e.g., The Boeing Co., 365 NLRB No.
154, slip op. at 31–33 (2017) (dissenting opinion).
The majority explains its failure to provide notice and an opportunity
for briefing by pointing out that the FedEx Board did not invite briefs
either. I was not a Board member when FedEx was decided. It is
worth noting, however, that at the time, the Board effectively was required to address the District of Columbia Circuit’s decision in FedEx
Home Delivery v. NLRB, 563 F.3d 492, 497 (D.C. Cir. 2009), because
every reviewable Board decision may be challenged in that court. See
National Labor Relations Act, Sec. 10(f), 29 U.S.C. §160(f). Thus—in
contrast to today’s out-of-the-blue ruling—the Board’s refinement of
independent-contractor doctrine in the FedEx decision could easily
have been anticipated, and amicus participation sought.
Insofar as the majority suggests that a Board decision issued without
notice and an invitation to file briefs may be overruled the same way,
its own reversals of precedent are vulnerable. This prospect, of course,
only shows that institutional norms, once broken, may be hard to fix.

15

business, subject to a nonnegotiable “unit franchise
agreement” that pervasively regulates their work; they
could not possibly perform that work for SuperShuttle
without being completely integrated into SuperShuttle’s
transportation system and its infrastructure; and they are
prohibited from working for any SuperShuttle competitor. SuperShuttle’s drivers are not independent in any
meaningful way, and they have little meaningful “entrepreneurial opportunity.” Under well-established Board
law—reflected in decisions leading up to and including
FedEx—this should be a straightforward case.
Instead, purporting to “return the Board’s independentcontractor test to its traditional common-law roots,” the
majority not only reaches the wrong result here, but also
adopts a test that cannot be reconciled with either the
common law or Supreme Court and Board precedent.
According to the majority, the Board is required to apply
the multi-factor, common-law agency test of employee
status, as articulated in the Restatement (Second) of
Agency §220 (1958), yet, at the same time, the majority
insists that “entrepreneurial opportunity . . . has always
been at the core of the common law test” and thus the
Board must treat “entrepreneurial opportunity” as “a
principle by which to evaluate the overall effect of the
common-law factors on a putative contractor’s independence to pursue economic gain.” Simply put, these two
requirements are contradictory: “entrepreneurial opportunity” is demonstrably not “at the core of the common
law test.”
Indeed, the majority does not coherently apply the test
it claims to adopt in actually deciding this case. Instead,
the majority insists that it is free to adjust its test whenever and however it likes, observing that “the Board may
evaluate the common-law factors through the prism of
entrepreneurial opportunity when the specific factual
circumstances of the case make such an evaluation appropriate.” As the Supreme Court has told the Board,
however, the reasoned decision making required by the
Administrative Procedure Act means that federal agencies may not announce one rule but apply another.3 That
seems to be the path the majority has chosen today.
I.
3 Allentown Mack Sales & Service v. NLRB, 522 U.S. 359, 374–375
(1998). As the Supreme Court explained there:

Reasoned decisionmaking, in which the rule announced is the rule applied, promotes sound results, and unreasoned decisionmaking the opposite. The evil of a decision that applies a standard other than the one
it enunciates spreads in both directions, preventing both consistent application of the law by subordinate agency personnel . . . and effective
review of the law by the courts.
Id. at 375.

 16

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Assessing the majority’s decision here first requires
understanding its legal background, as well as carefully
analyzing what the Board actually said and did in the
2014 FedEx decision. I address each point in turn.
A. The Common-Law Origins of the Employee/Independent Contractor Test
Section 2(3) of the National Labor Relations Act excludes independent contractors, as opposed to employees, from statutory coverage.4 The starting point for independent-contractor determinations under the National
Labor Relations Act is the Supreme Court’s decision in
NLRB v. United Insurance Co. of America, 390 U.S. 254
(1968). There, the Court held that the Act incorporated
the “common law agency test in distinguishing an employee from an independent contractor.” 390 U.S. at
256. Upholding the Board’s determination that insurance-company “debit agents” were statutory employees
(and reversing the Seventh Circuit’s contrary determination), the Court explained that:
There are innumerable situations which arise in the
common law where it is difficult to say whether a particular individual is an employee or an independent
contractor. . . .
....
There is no shorthand formula or magic phrase that
can be applied to find the answer, but all of the incidents of the relationship must be assessed and weighed
with no one factor being decisive. What is important is
that the total factual context is assessed in light of the
pertinent common-law agency principles.
Id. at 258 (footnote omitted; emphasis added).
In later decisions involving application of the common-law agency test to employee-status determinations
under federal statutes, the Supreme Court has consistently been guided by the multifactor test articulated in Section 220 of the Restatement (Second) of Agency, which
addresses the tort liability of “masters” for the actions of
their “servants.”5 See, e.g., Nationwide Mutual Insur-

ance Co. v. Darden, 503 U.S. 318, 323–324 (1992) (applying Employee Retirement Income Security Act). The
Restatement notes that “[u]nder the existing regulations
and decisions involving the Federal [sic] Labor Relations
Act, there is little, if any, distinction between employee
and servant as here used.”6 No Supreme Court decision
has cast doubt on the continuing viability of United Insurance or the later cases that look to the Restatement for
authoritative guidance.
The Board’s seminal independent-contractor case is
Roadway Package System, 326 NLRB 842 (1998), a
unanimous full-Board decision7 that, not surprisingly,
endorsed the use of the open-ended, multifactor Restatement test. There, relying heavily on the Supreme Court’s
decision in United Insurance, the Board (1) rejected the
[T]he following matters of fact, among others, are considered:
(a) the extent of control which, by the agreement, the master
may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct
occupation or business;
(c) the kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing
the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of
the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.
(emphasis added).
6 Restatement (Second) of Agency §220, comment g. The focus of
the Restatement, of course, is the common-law liability of employers
(“masters”) for torts committed by their employees (“servants”), not
issues of federal statutory coverage turning on employee status or the
existence of an employment relationship. As the Restatement explains:
The conception of the master's liability to third persons appears to be
an outgrowth of the idea that within the time of service, the master can
exercise control over the physical activities of the servant. From this,
the idea of responsibility for the harm done by the servant's activities
followed naturally.
....

Sec. 2(3) provides that “[t]he term ‘employee’ shall include any
employee . . . but shall not include … any individual having the status
of an independent contractor.” 29 U.S.C. §152(3).
5 Under Sec. 219(1) of the Restatement, a “master is subject to liability for the torts of his servants committed while acting in the scope
of their employment.” Sec. 220(1) provides that “a servant is a person
employed to perform services in the affairs of another and who with
respect to the physical conduct in the performance of the services is
subject to the other’s control or right to control.” Sec. 220(2), in turn,
identifies a long list of factors to be considered “[i]n determining
whether one acting for another is a servant or an independent contractor.” It provides that:
4

[W]ith the growth of large enterprises, it became increasingly apparent
that it would be unjust to permit an employer to gain from the intelligent cooperation of others without being responsible for the mistakes,
the errors of judgment and the frailties of those working under his direction and for his benefit. As a result of these considerations, historical and economic, the courts of today have worked out tests which are
helpful in predicting whether there is such a relation between the parties that liability will be imposed upon the employer for the employee's
conduct which is in the scope of employment.
Id., §219, comment a (emphasis added).
7
Four of the Board’s five members participated; the remaining
member was recused. Id. at 842 & fn. 8.

 SUPERSHUTTLE DFW, INC.

argument that “those factors which do not include the
concept of ‘control’ are insignificant when compared to
those that do;” (2) correctly noted that the Restatement
“specifically permitt[ed] the consideration of . . . relevant
factors” other than those identified by the Restatement;
and (3) concluded that the “common-law agency test
encompasses a careful examination of all factors and not
just those that involve a right of control.”8 Roadway has
never been overruled, and the majority today cites the
decision with approval—as it must, if it wants to claim
(and maintain) continuity with the Board’s wellestablished approach in this area.
B. The FedEx Cases
The Board’s 2014 FedEx decision, overruled today,
was a response to a 2009 divided-panel decision of the
District of Columbia Circuit, which also involved drivers
working for FedEx Home Delivery. Reversing a Board
decision that had found the drivers to be employees,9 the
panel majority interpreted the Circuit’s case law—and
the Board’s—as having shifted over time
away from the unwieldy control inquiry in favor of a
more accurate proxy: whether the “putative independent contractors have ‘significant entrepreneurial opportunity for gain or loss.’”
FedEx Home Delivery v. NLRB, 563 F.3d 492, 497 (D.C.
Cir. 2009), quoting Corporate Express Delivery Systems v.
NLRB, 292 F.3d 777, 780 (D.C. Cir. 2002). “Thus,” the
panel majority announced, “while all of the considerations
at common law remain in play, an important animating
principle by which to evaluate those factors in cases where
some factors cut one way and some the other is whether the
position presents the opportunities and risks inherent in entrepreneurialism.” Id.
This description of the Board’s independent-contractor
caselaw as evolving was inaccurate, as Circuit Judge
Garland explained in his detailed dissent.10 First, the
Board had not treated “control” as an “animating principle” or master factor. The Roadway decision makes this
plain. There, the Board rejected the argument that the
Restatement factors that did not involve the right to control were relatively insignificant. Second, the Board decisions cited by the Circuit panel majority as marking the
Board’s supposed shift in emphasis—away from control
Id. at 850.
A Regional Director, applying Roadway, determined that the drivers were employees. The Board denied the company’s request for
review of the Regional Director’s decision. After an election that led to
the union’s certification, the Board ultimately found that the company
had unlawfully refused to bargain. FedEx Home Delivery, 351 NLRB
No. 16 (2007) (not reported in Board volumes).
10 FedEx Home Delivery, supra, 563 F.3d at 504–519.
8
9

17

and to “entrepreneurial opportunity”—reveal nothing of
the sort.11
What has characterized the Board’s independentcontractor doctrine since Roadway has been continuity,
not change: a consistent emphasis on the Restatement’s
multi-factor common-law test and a corresponding adherence to the Supreme Court’s admonition in United
Insurance that “[t]here is no shorthand formula or magic
phrase that can be applied to find the answer, but all of
the incidents of the relationship must be assessed and
weighed with no one factor being decisive.”12
The Board’s 2014 FedEx decision13 responded to the
District of Columbia Circuit’s misperception that the
Board had already taken a new approach in evaluating
employee status, and to the court’s endorsement of that
11 Indeed, the Circuit panel majority itself “readily concede[d] that
the Board’s language ha[d] not been as unambiguous as” the court’s
own decisional language assertedly had. FedEx Home Delivery, supra,
563 F.3d at 498. But this concession was an understatement. In Corporate Express, 332 NLRB 1522 (2000), for example, the Board found
that driver “owner-operators” working for a delivery company were
statutory employees, not independent contractors, but gave no special
emphasis to the concept of “entrepreneurial opportunity.” In Arizona
Republic, 349 NLRB 1040 (2007), meanwhile, a divided Board also
reaffirmed Roadway and considered several factors (including “entrepreneurial potential” in connection with “method of compensation”) in
determining that the newspaper carriers at issue were independent
contractors. But here, too, there was no hint of a shift in emphasis or
the elevation of “entrepreneurial opportunity” into an “animating principle.”
The same is true of two other Board decisions briefly cited by the
Circuit panel majority. In St. Joseph News-Press, 345 NLRB 474
(2005), a divided decision involving newspaper carriers, a divided
Board reaffirmed Roadway, observing that “both the right of control
and other factors, as set out in the Restatement, are to be used to evaluate claims that hired individuals are independent contractors.” Id. at
478. The Board majority concluded that “[o]n balance . . . under the
common law test . . . the factors weigh in favor of finding independent
contractor status.” Id. at 479. Among the five factors relied upon, but
given no special weight, was the “method of compensation, which
allowed for a degree of entrepreneurial control.” Id. In Dial-AMattress Operating Corp., 326 NLRB 884 (1998), the companion case
to Roadway, the Board observed that the “list of factors differentiating
‘employee’ from ‘independent contractor,’ is nonexhaustive, with no
one factor being decisive.” Id. at 891. The Board observed that the
“separateness” from the company of the owner-operator drivers was
“manifested in many ways, including significant entrepreneurial opportunity for gain or loss,” id. at 891 (emphasis added), but the decision
relied on multiple factors, id. at 891–893, none of which was treated as
of overriding importance.
12 390 U.S. at 258.
13 FedEx 2014 involved drivers at the company’s Hartford, Connecticut facility. The Board initially denied review of a Regional Director’s
finding that the drivers were statutory employees. The District of Columbia Circuit then issued its own FedEx decision, which (as discussed) found that drivers at the company’s Wilmington, Massachusetts
facility were independent contractors. In turn, FedEx argued to the
Board that, in light of the court’s decision, it was required to revisit the
earlier denial of review, prompting the Board to take up the issue.
FedEx, supra, 361 NLRB at 610.

 18

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

supposed shift. The FedEx Board first reaffirmed the
Board’s longstanding commitment to the principles articulated by the Supreme Court in United Insurance, to
the “seminal” Roadway decision, and to the “nonexhaustive common-law factors enumerated in the Restatement
(Second) of Agency.”14 Second, the Board “more clearly
define[d] the analytical significance of a putative independent contractor’s entrepreneurial opportunity for gain
or loss, a factor that the Board has traditionally considered.”15 It “decline[d] to adopt the District of Columbia
Circuit’s . . . holding insofar as it treat[ed] entrepreneurial opportunity . . . as an ‘animating principle’ of the inquiry.”16
“Entrepreneurial opportunity,” the Board held, “represents one aspect of a relevant factor that asks whether the
evidence tends to show that the putative contractor is, in
fact, rendering services as part of an independent business.”17 The Board carefully explained why it chose not
to adopt the District of Columbia Circuit’s approach,
observing that this approach was not mandated by the
Act, by the Supreme Court’s decision in United Insurance, or by Board precedent and that “adopting it would
mean a broader exclusion from statutory coverage than
Congress appears to have intended.”18 The Board observed, in turn, that the “Restatement makes no mention
at all of entrepreneurial opportunity or any similar concept,” a “silence [that] does not rule out consideration of
such a principle, but . . . cannot fairly be described as
requiring it.”19 Meanwhile, the United Insurance admonition against relying on a “shorthand formula or magic
phrase” weighed against the District of Columbia Circuit’s approach.20
The Board has since applied the FedEx decision faithfully, continuing to examine each of the traditional
common-law factors enumerated in the Restatement, as
well as the independent-business factor, in making inde361 NLRB at 610–611.
Id. at 610.
16 Id.
17 Id. (emphasis omitted). The Board explained that it “should give
weight to actual, but not merely theoretical, entrepreneurial opportunity, and it should necessarily evaluate the constraints imposed by a
company on the individual’s ability to pursue this opportunity.” Id. at
610. Accordingly, the Board overruled two prior decisions by divided
Board panels—St. Joseph News-Press, supra (decided in 2005), and
Arizona Republic (decided in 2007)—“[t]o the extent that . . . [they]
may have suggested that” the constraints effectively imposed on a
putative contractor’s ability to render services as part of an independent
business “are not relevant to the Board’s independent-contractor inquiry.” Id. at 621 (emphasis added).
18 Id. at 617.
19 Id. at 618.
20 Id.
14
15

pendent-contractor determinations.21 The District of
Columbia Circuit, meanwhile, denied enforcement to the
Board’s FedEx decision, applying the law-of-the-circuit
doctrine and holding that the issue addressed there—the
independent-contractor status of the company’s drivers—
had already been resolved by the Circuit’s earlier decision.22 Notably, other courts have reached a contrary
conclusion, finding FedEx drivers to be employees under
the common law. See, e.g., Alexander v. FedEx Ground
Package System, Inc., 765 F.3d 981 (9th Cir. 2014) (applying California common law).23
As I will explain, while I did not participate in FedEx
(which issued before I joined the Board), I am persuaded
21 See Minnesota Timberwolves Basketball, LP, 365 NLRB No. 124
(2017); Pennsylvania Interscholastic Athletic Assn., 365 NRB No. 107
(2017); Sisters’ Camelot, 363 NLRB No. 13 (2015); Porter Drywall,
Inc., 362 NLRB 7 (2015).
22 FedEx Home Delivery v. NLRB, 849 F.3d 1123, 1127 (D.C. Cir.
2017). However, it is noteworthy that in a post-FedEx decision, considering “entrepreneurial opportunity” as a “factor,” the District of
Columbia Circuit has also enforced the Board’s decision (issued before
FedEx) in which the Board determined that symphony orchestra musicians were statutory employees, not independent contractors, based on
an analysis that seemingly departs from the court’s own preferred approach. See Lancaster Symphony Orchestra v. NLRB, 822 F.3d 563
(D.C. Cir. 2016), enfg. 357 NLRB 1761 (2011). The court described
“entrepreneurial opportunity” as a “factor which does not appear in the
Restatement but which the Board and this court use in assessing whether workers are employees or independent contractors.” Id. at 569. The
court analyzed the Restatement factors, then seemed to consider “entrepreneurial opportunity” as a separate factor, concluding that in the case
of the musicians, it was “limited” and “provide[d] only miniscule support for independent contractor status.” Id. at 570. “Summing up,” the
court determined “that the relevant factors point in different directions”
and accordingly “defer[red] to the Board’s conclusion that the . . . musicians [were] employees.” Id.
23 See also Mark J. Lowenstein, Agency Law and the New Economy,
72 Bus. Law. 1009, 1017–1020 (2017) (describing litigation involving
FedEx drivers and collecting decisions).
Professor Lowenstein writes that “businesses often have crafted contracts to fit their workers within the definition of independent contractor” and that “[n]o business has been more creative in that regard than
FedEx . . . whose efforts to craft an independent contractor relationship
with its drivers spawned litigation across the country.” Id. at 1017. As
the U.S. Commission on the Future of Worker-Management Relations
(the blue-ribbon Dunlop Commission) observed nearly 25 years ago:

[C]urrent tax, labor and employment law gives employers and employees incentives to create contingent relationships not for the sake of
flexibility or efficiency but in order to evade their legal obligations.
For example, an employer and a worker may see advantages wholly
unrelated to efficiency or flexibility in treating the worker as an independent contractor rather than an employee. The employer will not
have to make contributions to Social Security, unemployment insurance, workers’ compensation, and health insurance, will save the administrative expense of withholding, and will be relieved of responsibility to the worker under labor and employment laws. . . . Many lowwage workers have no practical choice in the matter.
U.S. Commission on the Future of Worker-Management Relations,
Final
Report
62
(1994)
(available
at
www.digitalcommons.ilr.cornell.edu)

 SUPERSHUTTLE DFW, INC.

that the Board’s decision was sound and defensible, and I
see no good reason to abandon it—in particular, not for
the confused approach adopted by the majority today,
which cannot be reconciled with common-law principles
or Supreme Court authority.
II. THE BOARD MAJORITY’S NEW TEST
Today, the majority overrules the FedEx decision, essentially embracing the District of Columbia Circuit’s
approach to “entrepreneurial opportunity.” But the majority cannot have it both ways; it cannot claim fidelity to
both the common-law test and the Circuit’s approach,
because that approach actually broke with the traditional
test. In support of this shift, the majority claims that the
FedEx Board gave too little weight to “entrepreneurial
opportunity,” and the Circuit, just the right amount—
purportedly the same amount as the Board had traditionally given it. However, as explained above, this view is
refuted by any fair reading of the decisions: the Board’s,
the Circuit’s, and the Supreme Court’s decision in United
Insurance, which matters most of all.
The majority also claims that the approach taken by
the FedEx Board is somehow contrary to the commonlaw agency test, and that its own approach conforms to
that test. That claim is similarly baseless. Indeed, there
is no real evidence to suggest that the traditional common law of agency, as reflected in the Restatement and
as developed to address issues of tort liability, was informed by the concept of “entrepreneurial opportunity”
at all. The majority seems to have been bewitched by
just the sort of “magic phrase” the Supreme Court
warned about and has accordingly elected to replace a
sound test with an unsupportable formulation that is inconsistent with Board precedent as well as both the
common-law and Supreme Court precedent.
A. Board precedent
There is no principled way to reconcile the District of
Columbia Circuit’s approach, now adopted by the majority, with Board precedent. With respect to the independent-contractor analysis, the court treated “entrepreneurial
opportunity” as a “more accurate proxy” than the “unwieldy control inquiry.”24 But the Roadway Board in
1998’s seminal decision had definitively rejected the
claim that “control” was the key analytical concept—
and, in the process, made clear that there is no such key,
no “animating principle” (to use the court’s phrase) of
independent-contractor doctrine. In supposedly replacing “control” with “entrepreneurial opportunity,” then,
the court began with an incorrect premise (that one prin24

FedEx, supra, 563 F.2d at 497.

19

ciple guides the analysis) and ended with a conclusion
that fundamentally departed from Board doctrine.
Similarly, the court in Fed Ex erred when it explicitly
rejected the Board’s view “[b]ecause the indicia favoring
a finding that the contractors are employees are clearly
outweighed by the evidence of entrepreneurial opportunity.” No Board decision has ever treated “evidence of
entrepreneurial opportunity” as such a trump card. To
the contrary, the two Board decisions in which such evidence was cited in support of finding independentcontractor status treated the evidence as simply one aspect of a common-law factor (“method of compensation”) that was itself part of a multifactor test, with no
factor receiving special weight.25 It is simply incorrect to
claim, as the majority does, that the District of Columbia
Circuit’s decision did not “depart[] in any significant
way from the Board’s traditional independent-contractor
analysis.”
Here, the majority fails in its attempt to explain how
the District of Columbia Circuit’s approach comports
with Roadway or other Board precedent. It tellingly fails
to cite a single Board decision that employs “entrepreneurial opportunity” as the Circuit does: to “evaluate”
the common-law factors, and to ask—as the decisive
question—“whether the position presents the opportunities and risks inherent in entrepreneurialism.”26 The majority echoes the Circuit in asserting that “entrepreneurial
opportunity, like employer control, is a principle by
which to evaluate the overall effect of the common-law
factors on a putative contractor’s independence to pursue
economic gain.” But this is simply not how the Board
has ever before approached independent-contractor determinations applying the common-law agency test.
Remarkably, the majority cites with apparent approval
two Board decisions in which the absence of “entrepreneurial opportunity”—a function of constraints imposed
by the employer—was relied upon as one factor among
others in finding that drivers were employees, not independent contractors. Thus, in Roadway, supra, the Board
explained:
As in United Insurance, the drivers here do not operate
independent businesses, but perform functions that are
an essential part of one company’s normal operations;
they need not have any prior training or experience, but
receive training from the company; they do business in
the company’s name with assistance and guidance from
it; they do not ordinarily engage in outside business;
they constitute an integral part of the company’s busi25 See Arizona Republic, supra, 349 NLRB at 1042–1046; St. Joseph
News-Press, supra, 345 NLRB at 478–479.
26 Id.

 20

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

ness under its substantial control; they have no substantial proprietary interest beyond their investment in their
trucks; and they have no significant entrepreneurial
opportunity for gain or loss. All these factors weigh
heavily in favor of employee status.
326 NLRB at 851 (emphasis added). Of course, even to
find that the lack of “entrepreneurial opportunity” is enough
to establish employee status would not mean that the presence of some “entrepreneurial opportunity,” no matter how
limited, would be enough to establish independentcontractor status. Nothing in Roadway suggests that if the
drivers there had enjoyed “significant entrepreneurial opportunity for gain or loss,” this alone would have been decisive.27 The Roadway Board clearly did not use “entrepreneurial opportunity” to “evaluate the overall effect of the
common-law factors on a putative contractor’s independence to pursue economic gain” (as the majority would have
it).28
Nor did the Board do so in the companion case to
Roadway, Dial-A-Mattress, supra, where it found delivery drivers to be independent contractors. The Board,
citing Roadway, observed that the “list of factors differentiating ‘employee’ from ‘independent contractor’ status under the common-law agency test is nonexhaustive,
with no one factor being decisive” and found that in the
27 To recall, the Roadway Board explicitly rejected the view that the
non-control factors were relatively insignificant to the common-law
analysis. 326 NLRB at 850. The majority mistakenly posits that “employer control and entrepreneurial opportunity are opposite sides of the
same coin,” ignoring the fact that “entrepreneurial opportunity” has no
apparent basis in the common law of agency. But even by the majority’s token, Roadway cannot possibly be read to hold that “entrepreneurial opportunity” (any more than “control”) diminishes the weight to be
given to factors that do not implicate either control or its supposed
obverse.
28 The majority also cites Corporate Express, supra, but to no avail.
There, in the course of addressing the usual range of traditional factors,
the Board observed:

They [the drivers] have no proprietary interest in their routes and no
significant opportunity for entrepreneurial gain or loss. The routes,
the base pay, and the amount of freight to be delivered daily on each
route are determined by the [employer], and owner-operators have no
right to add or reject customers.
332 NLRB at 1522 (emphasis added). But the Board did not treat
“entrepreneurial opportunity” as the analytical key to the case.
Nor did the Board do so in Slay Transportation Co., 331 NLRB
1292 (2000), also cited by the majority. There, the Board examined all
of the traditional common-law factors in holding the drivers to be employees, observing (among other things) that the drivers were “given
specific instructions as to the manner in which they [were] to perform
their tasks,” that they did not “operate independent businesses,” and
that they performed functions that were “the very core of [the employer’s] business.” Id. at 1293–1294. “Having considered all of the incidents of the [drivers’] relationship with the [e]mployer,” the Board
concluded “that the various factors of the common law agency test
weigh[ed] heavily in favor of employee status.” Id. at 1294.

case before it, the “factors weigh[ed] more strongly in
favor of independent-contractor status.”29 To be sure, the
Board found that the drivers’ “separateness from [the
company] was manifested in many ways, including significant entrepreneurial opportunity for gain or loss,” but
the Board also distinguished Roadway in several respects, including by observing that the employer there
“exercise[d] more control over its drivers’ manner and
means of accomplishing their work.”30 There was no
“shorthand formula” at work in Dial-A-Mattress any
more than in Roadway, but instead a nuanced analysis
and weighing of multiple factors.
The Board’s FedEx decision is entirely consistent with
Roadway and Dial-A-Mattress, whereas the formulation
adopted by the majority today manifestly is not.31 Tellingly, the Circuit’s FedEx decision did not cite either
decision as evidence of the Board’s supposed focus on
“entrepreneurial opportunity,” and the majority today is
forced to say that the imaginary “shift[]” in the Board’s
“perspective” occurred “particularly since Roadway”
(emphasis added)—when, in fact, it never happened at all
(until today). As the District of Columbia Circuit has
itself explained, “[a]n agency’s failure to come to grips
with conflicting precedent constitutes ‘an inexcusable
departure from the essential requirement of reasoned
decision making.’”32 Under the cover of the Circuit’s
decision, this is just what the majority has done here:
departed from Board precedent—that is, the precedent
before FedEx—without ever acknowledging that it conflicts with today’s decision.
The most the majority will say is that “the Board’s
precedent in this area . . . has not been entirely consistent” and that “[t]oday’s decision is intended to eliminate any ambiguity over how to treat entrepreneurial opportunity in the Board’s independent-contractor analysis
in the future.” In fact, however, it was the Board’s FedEx decision that, responding to the District of Columbia
Circuit, actually eliminated ambiguity and clarified
Board doctrine, within permissible bounds. The majority’s decision, in contrast, adopts an impermissible approach that cannot be reconciled with what came before
and that provides no clear guidance for the future.
326 NLRB at 891.
Id. at 893.
31 It merits notice that, by citing Roadway and Corporate Express
with approval, the majority seems to recognize (as it must) that to the
extent that the “entrepreneurial opportunity” of a purported independent
contractor is, as a practical matter, constrained by the company he
works for, it is entitled to correspondingly lesser weight in the analysis.
If a purely theoretical “entrepreneurial opportunity” were enough to
make a worker an independent contractor, then the Roadway Board
would not have found the drivers there to be employees.
32 NLRB v. CNN America, Inc., 865 F.2d 740, 751 (D.C. Cir. 2017).
29
30

 SUPERSHUTTLE DFW, INC.

21

B. Supreme Court Precedent and the Common Law
Even more troubling than this inconsistency with
Board precedent is the majority’s failure to reconcile its
new approach with common law principles and the Supreme Court’s decision in United Insurance. Certainly,
today’s majority repeats the District of Columbia Circuit’s profession that its approach was faithful to United
Insurance and pays lip service to the settled principle
that the “ten-factor [Restatement] test is not amenable to
any sort of bright-line rule.”33 But the approach adopted
by the Circuit, and now by the Board majority today, is
precisely the kind of “shorthand formula” that both the
common law and the United Insurance decision reject.34
The majority argues that it is required to overrule the
Board’s FedEx decision because the decision “impermissibly altered the Board’s traditional common-law test for
independent contractors by severely limiting the significance of entrepreneurial opportunity to the analysis.”
According to the majority, the FedEx Board effectively
abandoned the common-law agency test in favor of the
“economic realities” test endorsed by the Supreme
Court’s 1944 Hearst decision, but then legislatively overruled by Congress in 1947. This claim is baseless. Indeed, it is the majority’s approach today—with its endorsement of “entrepreneurial opportunity” as a sort of
super-factor—that subordinates the common law to a
particular vision of supposed “economic reality” where
workers are deemed “entrepreneurs” and labor law, irrelevant. Neither the common law nor the policies of the
Act support the majority’s expansive view of how “entrepreneurial opportunity” should operate to exclude
workers from statutory coverage.35
The majority’s position rests on the premise that “entrepreneurial opportunity” is the core concept of the traditional common-law agency test. There is no support
for such a claim. If the common-law agency test has a
core concept, it is demonstrably not “entrepreneurial opportunity,” but rather “control” (although, to be sure, the

Roadway Board rejected the view that the Restatement
factors “which do not include the concept of ‘control’ are
insignificant when compared to those that do”36). As the
District of Columbia Circuit itself has just told us, “the
‘right to control’ [not ‘entrepreneurial opportunity’] runs
like a leitmotif through the Restatement (Second) of
Agency.”37 Thus, as noted, Restatement Section 220(1)
defines a “servant” (as opposed to an independent contractor) as “a person employed to perform services in the
affairs of another and who with respect to the physical
conduct in the performance of the services is subject to
the other’s control or right of control.” Restatement Section 220, comment g, in turn, traces this definition to the
idea that because “the master can exercise control over
the physical activities of the servant,” he is properly held
liable for harm caused by the servant.
The Restatement certainly does not define a “servant”
as a “person employed to perform services in the affairs
of another and who in the performance of the services
lacks entrepreneurial opportunity for gain or loss.”38
But this is how the majority, embracing the District of
Columbia Circuit’s approach, has effectively rewritten
the definition. None of the Restatement Section 220(2)
factors, meanwhile, explicitly or implicitly incorporate
the concept of “entrepreneurial opportunity.” “Entrepreneurial opportunity” does not inform (in any clear and
direct way, at least): “extent of control;” “distinct occupation or business;” “kind of occupation;” “skill required;” who supplies the instrumentalities; “length of
time . . . employed;” “method of payment;” “part of the
regular business;” the parties’ belief in what relationship
they are creating; and the “business” of the principal.39
Citing the Restatement, the Supreme Court has observed
that “[a]t common law the relevant factors defining the
master-servant relationship focus on the master’s control
over the servant,” and that in determining whether a person is an “employee” under a federal statute that does not
otherwise define the term, “the common-law element of

563 F.3d at 496.
It is clear from the District of Columbia Circuit’s decision that it
was, indeed, applying a new standard and thus rejecting the Board’s
view (that the FedEx drivers were employees) “[b]ecause the indicia
favoring a finding that the contractors are employees are clearly outweighed by the evidence of entrepreneurial opportunity.” 563 F.3d at
504. This approach amounts to a “shorthand formula,” despite any
disclaimer. It was the adoption of this formula, in turn, that enabled the
Circuit to reject the Board’s view of the case, despite the deferential
standard of judicial review established by United Insurance.
35 The explicit policy of the National Labor Relations Act is “encouraging the practice and procedure of collective bargaining and . . .
protecting the exercise by workers of full freedom of association, selforganization, and designation of representatives of their own choosing.
. . .” NLRA, Sec. 1, 29 U.S.C. §151. In light of that policy, exclusions
from statutory coverage should be interpreted narrowly.

326 NLRB at 850.
Browning-Ferris Industries of California, Inc. v. NLRB, No. 161028, slip op. at 27 (D.C. Cir. Dec. 28, 2018). “[A]t bottom,” the court
observed, the “independent-contractor test considers who, if anyone,
controls the worker other than the worker herself.” Id. at 33 (emphasis
added).
38 The dictionary definition of an “independent contractor” (the term
actually used in Sec. 2(3) of the National Labor Relations Act) is “one
that contracts to do work or perform a service for another and that
retains total and free control over the means and methods used in doing
the work or performing the service.” Webster’s Third New International Dictionary of the English Language 1148 (1966) (emphasis
added).
39 See fn. 5, supra (quoting Restatement §220(2) factors).

33
34

36
37

 22

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

control is the principal guidepost that should be followed.”40
To be clear, the Supreme Court has not held that “entrepreneurial opportunity” is “the principal guidepost
that should be followed.” Nor does the majority’s incorrect description of “employer control” and “entrepreneurial opportunity” as “opposite sides of the same coin” do
the analytical trick. As explained, the focus of the common law of agency is determining tort liability—a master
is liable for the torts of his servant—and liability follows
from control.41 The servant’s “entrepreneurial opportunity” (or lack of it) is simply not part of the common-law
equation. While one can debate whether the common
law of agency is well suited to determining coveredemployee status under a federal statute like the National
Labor Relations Act, that was the choice that Congress
made, as the Supreme Court has definitively held. Here,
as in the joint-employer context, the Board “must color
within the common-law lines identified by the judiciary.”42
Quoting then-Member Johnson’s dissent, the majority
criticizes the FedEx Board’s approach because (in the
majority’s view) it “greatly diminishes the significance
of entrepreneurial opportunity and selectively overemphasizes the significance of ‘right to control’ factors relevant to perceived economic dependency.” What the
majority fails to explain, however, is where, how, and
why traditional common-law agency doctrine not only
incorporates the concept of “entrepreneurial opportunity,” but also subordinates the “control” factors to it
(along with the remaining Restatement factors, as well).
With approval, the majority cites the supposed “evolving
emphasis on entrepreneurial opportunity” in the decisions of the District of Columbia Circuit and the Board,
as described by the FedEx court. But the majority does
not explain how the common-law agency test applied by
the Board (or the Circuit) could evolve in a fundamental
way and yet still adhere to the Restatement, the legal
40 Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S.
440, 448 (2003) (emphasis added) (addressing employee status under
Americans with Disabilities Act of 1990). The majority—citing the
Restatement’s example of a full-time cook regarded as a servant, despite the fact that the employer exercises “no control over the cooking”—observes that a “master-servant relationship can exist in the
absence of the master’s control over the servant’s performance of
work.” This single example, however, in no way suggests that “entrepreneurial opportunity” informs the common-law analysis. Indeed, it
refutes the majority’s assertion that “entrepreneurial opportunity” is
simply the obverse of “control.” That the cook’s employer does not
control his cooking does not mean that the cook has “entrepreneurial
opportunity.”
41 See Restatement (Second) of Agency §219.
42 Browning-Ferris Industries, supra, No. 16–1028, slip op. at 21.

source treated as authoritative by the Supreme Court.43
Put somewhat differently, the traditional common law of
agency does not develop through the decisions of the
Board and the District of Columbia Circuit, but rather
exists independently of them.44 United Insurance,
meanwhile, contains no hint that “entrepreneurial opportunity” was an “animating principle” of the common-law
test. The approach taken by the FedEx Board, unlike the
majority’s today, is entirely consistent with common-law
agency principles.
The FedEx Board did no more than permissibly refine
the way that the Board would apply the common-law
agency test.45 Essential to the majority’s criticism of
FedEx is the suggestion that it was somehow illegitimate
to treat “entrepreneurial opportunity” as a factor, or as an
element of a factor, in the independent-contractor analysis. Thus, the majority insists that “[p]roperly understood, entrepreneurial opportunity is not an independent
common-law factor;” rather, it is “a principle by which to
evaluate the overall effect of the common-law factors on
a putative contractor’s independence to pursue economic
gain” and thus (according to the majority), the FedEx
Board “impermissibly altered the Board’s traditional
common law test . . . by severely limiting the significance of entrepreneurial opportunity to the analysis.” As
43

See, e.g., Nationwide Mutual Insurance, supra, 503 U.S. at 323–

324.
Thus, in recently upholding the Board’s joint-employer standard,
the District of Columbia Circuit “look[ed] first and foremost to the
‘established’ common-law definitions at the time Congress enacted the
National Labor Relations Act in 1935 and the Taft-Hartley Amendments in 1947.” Browning-Ferris Industries, supra, No. 16–1028. slip
op. at 22. There is no clear indication that in adopting the “independent
contractor” exclusion in 1947—and thus incorporating the commonlaw agency test into the National Labor Relations Act (as the Supreme
Court held in United Insurance)—Congress intended for the test to
evolve over time, much less that this evolution was to be directed by
the Board or by the federal courts.
45 As explained, the FedEx Board sought to refine how evidence of
“actual entrepreneurial opportunity for gain or loss” is “to be properly
assessed as part of the traditional common-law factors.” 361 NLRB at
620. It observed that the Board “has been less than clear about this
point.” Id. In some cases, “entrepreneurial opportunity ha[d] been
analyzed expressly as a separate factor.” Id., citing Lancaster Symphony Orchestra, 357 NLRB 1761, 1763 (2011), and Pennsylvania Academy of the Fine Arts, 343 NLRB 846, 846 fn. 1 (2004). In others, it
was “integrated into the Board’s analysis of other factors.” Id., citing
Roadway, supra, 326 NLRB at 851–853, and Stamford Taxi, 332 NLRB
1372, 1373 (2000). The Board had also “spoken in terms of the ‘economic independence’ of putative contactors from their employing entities.” Id., citing Slay Transportation, supra, 331 NLRB at 1294. Synthesizing the Board’s prior decisions, the FedEx Board articulated a
new “independent-business” factor, which “supplements—without
supplanting or overriding—the traditional common-law factors,” and
explained that the “weight given to the independent-business factor will
depend upon the factual circumstances of the particular case.” Id. at
621.
44

 SUPERSHUTTLE DFW, INC.

explained already, it is the majority’s treatment of “entrepreneurial opportunity” as a sort of super-factor that
contradicts the common-law agency test. As for the
FedEx Board’s approach, in contrast, the Restatement
explicitly states that the factors listed in Section 220(1)
are considered “among others.” The Roadway Board, in
turn, accurately described the Restatement as “specifically permitting the consideration of other relevant factors
as well, depending on the factual circumstances presented.”46 Pre-FedEx decisions by the Board, as noted, have
treated “entrepreneurial opportunity” as a factor. And, as
earlier pointed out, the District of Columbia Circuit itself, in a post-FedEx decision, has described “entrepreneurial opportunity” as a “factor” to be considered, along
with those identified in the Restatement.47
The majority’s insistence that the FedEx Board impermissibly abandoned common-law agency principles
to return to the “economic realities” test articulated by
the Supreme Court in Hearst, supra, is baseless—as
demonstrated by any fair reading not only of FedEx, but
of the Board decisions that have since applied FedEx, all
of which reflect a careful analysis of the Restatement
factors and the independent-business factor articulated in
FedEx. In Porter Drywall, for example, the Board followed this approach and determined that “crew leaders”
hired as drywall-installation subcontractors were independent contractors, not employees.48 Then-Member
Johnson (who had dissented in FedEx) concurred, observing that the result would have been the same under
the test he had advocated there.49 If FedEx had actually
left the common law behind, one might think it would
yield different results.
On that score, finally, it is worth pointing again to the
Ninth Circuit’s Alexander decision involving FedEx
drivers. There, the court—just like the FedEx Board—
held that the drivers were not independent contractors,
but rather employees. Applying California common law,
which closely resembles the approach of the Restatement, the Ninth Circuit rejected the company’s reliance
on the District of Columbia Circuit’s FedEx decision,
observing that there was “no indication that California
had replaced its longstanding right-to-control test with
the new entrepreneurial opportunities test developed by
the D.C. Circuit” and explaining that under California
law, the sort of company-constrained “entrepreneurial
46 326 NLRB at 850. The District of Columbia Circuit is in agreement on this point. See, e.g., FedEx Home Delivery, supra 849 F.3d at
1125 (describing Restatement as “provid[ing] a non-exhaustive list of
ten factors to consider”).
47 Lancaster Symphony Orchestra, supra, 822 F.3d at 569–570.
48 Porter Drywall, supra, 362 NLRB 7.
49 Id. at 12.

23

opportunities” available to the drivers “did not override
other factors in [the] multi-factor analysis.”50 The Ninth
Circuit’s decision, then, illustrates that the test adopted
by the Board majority today is the novelty, a departure
from traditional common law.
III.
The “entrepreneurial opportunities” test, in short, cannot be reconciled with the Board’s pre-FedEx precedent
(to which the majority claims to adhere) or with Supreme
Court precedent and the common law of agency (to
which the Board must adhere). But that is not where the
problems with today’s decision end, because while the
majority adopts the “entrepreneurial opportunities” test,
it does not apply the test as articulated.
Under the test adopted and articulated by the majority,
“entrepreneurial opportunity . . . is a principle by which
to evaluate the overall effect of the common-law factors
on a putative contractor’s independence to pursue economic gain.” Precisely what this means, even in theory,
is not easy to understand. In its subsequent analysis of
the record evidence here, however, the majority does not
evaluate “the overall effect of the common -law factors.”
Instead, it begins its analysis by reciting ways in which
the SuperShuttle drivers assertedly resemble “entrepreneurs or small business owners,” and then asserts that
“these factors”—which are not, in fact, drawn from the
Restatement—“are not outweighed by any countervailing
50 765 F.3d at 993–994 (emphasis added). The majority discounts
the Ninth Circuit’s decision based on its mistaken view that the court
applied a California test fundamentally different than the common-law
agency test that the Board is required to apply. The Ninth Circuit described California law this way:
California’s right-to-control test requires courts to weigh a number of factors: “The principal test of an employment relationship
is whether the person to whom service is rendered has the right to
control the manner and means of accomplishing the result desired.”
...

California courts also consider “several ‘secondary’ indicia of the nature of a service relationship. . . .” The right to terminate at will, without cause, is “[s]trong evidence in support of an employment relationship.” Additional factors include:
“ (a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to
whether, in the locality, the work is usually done under the direction of
the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the
worker supplies the instrumentalities, tools, and the place of work for
the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the
time or by the job; (g) whether or not the work is a part of the regular
business of the principal; and (h) whether or not the parties believe
they are creating the relationship of employer-employee.”
765 F.3d at 988 (citations omitted). The close similarity to the Restatement test is obvious.

 24

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

factors supporting employee status.” Only then does the
majority turn to the Restatement factors. In short, the
majority does, indeed, treat “entrepreneurial opportunity”
as an “overriding consideration.” The internal inconsistencies in the majority’s approach are reason enough to
reject its analysis.51
By contrast, even putting aside the now-overruled
FedEx approach, looking only to pre-FedEx Board precedent (which remains good law), and keeping SuperShuttle’s burden of proof in mind, a careful examination of
the Restatement factors, as the Board has traditionally
applied them, should lead to a finding of employee status
here. Notably, the SuperShuttle drivers bear a strong
resemblance to the insurance agents found by the Supreme Court to be employees, not independent contractors, in United Insurance, supra. Thus, the Regional Director erred in dismissing the Union’s representation
petition: the SuperShuttle drivers should be permitted to
pursue the union representation that they seek.
A. Essential Facts
The essential facts here are straightforward and not in
dispute—although the majority’s discussion neglects
certain facts that cut against its ultimate conclusion that
the drivers are independent contractors.
SuperShuttle has a contract with the Dallas/Fort Worth
International Airport Board, a public agency, to provide a
shared-ride service to airport customers. The relationship between SuperShuttle and its drivers, in turn, is
governed in comprehensive detail by the “Unit Franchise
Agreement” (UFA).
The UFA is effectively imposed on the drivers by SuperShuttle. It is a standard agreement, not subject to negotiation by individual drivers, and (by its terms) it may
be changed by SuperShuttle at will. The UFA prohibits
drivers from engaging in any business activity that will
conflict with their obligations under the agreement—
including working for a SuperShuttle competitor and any
involvement with another business that provides transportation services (a fact the majority ignores).
Under the UFA, drivers pay SuperShuttle not only an
initial “franchise fee,” but also a flat, weekly system fee
($575 for a Dallas/Fort Worth Airport franchise) and a
$100-per-week contribution to reimburse SuperShuttle
for its payment of certain driving-related fees.
The UFA requires drivers to buy or lease a van that
meets SuperShuttle’s detailed specifications. Most drivers lease their vehicles—and SuperShuttle has its own,
affiliated leasing company, which (as SuperShuttle’s
general manager testified) “helps these guys who have
poor credit”—a fact the majority ignores.
51

See Allentown Mack, supra, 522 U.S. at 374–375.

SuperShuttle provides training to its drivers, not only
the training required by its contract with the airport
board, but also training in its “brand standards” and the
operation of its communication systems—subjects that
the UFA describes as “unique to the SuperShuttle system.” (The majority does not mention this.)
Central to the drivers’ work is SuperShuttle’s Nextel
trip generating system, which the UFA requires drivers
to use. The specialized equipment drivers must use includes a pager, a two-way radio, and a global-positioning
navigation system—all owned by SuperShuttle, which
prohibits the drivers from using the equipment outside
the SuperShuttle system.
SuperShuttle does not set drivers work schedules,
routes, or assignments. But SuperShuttle’s Nextel trip
generating system is integral to dispatch services. The
system generates job “bids,” that drivers ostensibly may
accept or decline. However, drivers testified that they
had been fined for declining bids. One driver testified
that deciding whether to accept or decline a bid was
“commonsense stuff,” based on the time and distance
involved in picking up a passenger. Drivers testified that
whether or not SuperShuttle required them to work, they
felt a practical need to work to be able, at least, to make
the fixed, weekly system payments to the company that
SuperShuttle required. SuperShuttle, not the drivers, sets
the fares. And, as mentioned, if drivers wish to work as
drivers, they must do so only for SuperShuttle.
Under the UFA, a driver may use a substitute or relief
driver, but only if the other driver meets SuperShuttle’s
detailed requirements. The UFA also imposes detailed
requirements on the transfer, assignment, or sale of a
SuperShuttle franchise.
B. The Restatement Factors
1. Factors the majority concedes support
employee status
Starting with the factors that the majority concedes favor a finding of employee status, it is clear here that the
drivers are not “engaged in a distinct occupation or business.”52 In fact, their “work is a part of the regular business of the employer,” SuperShuttle.53 The “principal,”
Restatement (Second) of Agency §220(2)(b).
Id., §220(2)(h). Beyond the common color scheme and driver uniforms (which are required by the Airport Contract), every aspect of
driver performance manifests SuperShuttle’s “uniform method and
philosophy of operation, customer service, marketing, advertising,
promotion, publicity, and technical knowledge relating to the airport
shuttle service business.” At the outset, drivers receive training in
brand standards and the Company’s proprietary system designed to
foster a consistent customer experience across SuperShuttle vehicles
and affiliates.
In their work, drivers are fully integrated into SuperShuttle’s nationwide organization and “central reservation system”: trip requests
52
53

 SUPERSHUTTLE DFW, INC.

SuperShuttle, “is . . . in business.”54 The majority correctly explains that “SuperShuttle is clearly involved in
the business of transporting customers, and its revenue
comes from providing that service.” As for the “skill
required in the particular occupation,”55 the majority
acknowledges that “the record does not indicate that
drivers have any particular skill.”56 Putting these factors
together, of course, reveals unskilled workers who perform the core function of a particular commercial enterprise.57 That picture is very strongly suggestive of an
employment relationship, as traditionally understood.58
The suggestion is reinforced, moreover, by a fact the
majority tellingly minimizes, relegating to a footnote the
fact that SuperShuttle, through the nonnegotiable franchise agreement, prohibits the drivers from working for
other transportation companies. The Board has previously relied on such restrictions as demonstrating employer
control.59 Even with respect to their own work for Suare processed via the Company’s website and central telephone number, and jobs are allocated to drivers by a network of dispatch managers. By General Manager Harcrow’s account, drivers also receive
support from SuperShuttle’s franchise manager, training and safety
manager, sales and marketing team, and accounting department.
Drivers also rely on the Nextel system, which is required to receive
jobs and process customer fares. In addition, the availability of work
for drivers largely depends on SuperShuttle’s access to Airport facilities, name recognition, marketing and advertising efforts, relationships
with hotels, and internet partnerships.
54 Id., §220(2)(j). SuperShuttle DFW, by the terms of the UFA, operates “a demand responsive and/or scheduled airport shuttle . . .
providing transportation to passengers traveling to and from specific
metropolitan airports and destinations within the general markets surrounding those airports.” Accordingly, drivers’ work “is the precise
business of the [employer].” Community Bus Lines/Hudson County
Executive Express, 341 NLRB 474, 475 (2004).
55 Id., §220(2)(d).
56 Drivers are not required to have any special training or skills.
Apart from the required licenses and shuttle certifications, drivers acquire the skills and information they need during the training and ridealong sessions that SuperShuttle provides.
57 It is almost inconceivable that at common law, such an enterprise
would not be held liable for a tort committed by one of its workers
while working. And that, of course, is the proper reference point, because (as described) common-law agency principles were developed for
the purpose of determining a principal’s liability for the acts of his
agent.
58 See, e.g., Prime Time Shuttle, 314 NLRB 838, 840 (1994) (“The
business of the [employer] is providing shared rides to the public and
its vans and drivers perform that function. Driving is not merely an
essential part of [the employer’s] business it is [the employer’s] business.”); Stamford Taxi, Inc., 332 NLRB 1372, 1373 (2000) (drivers
“devote virtually all of their time, labor and equipment to providing the
essential functions of the [employer’s] . . . business.”); see also Slay
Transportation Co., supra, 331 NLRB at 1294 (“[Drivers] perform
functions that are not merely a ‘regular’ or even an ‘essential’ part of
the Employer’s normal operations, but are the very core of its business”).
59 See, e.g., Metro Cab Co., 341 NLRB 722, 724 (2004); Stamford
Taxi, supra, 332 NLRB at 1373; see also Argix Direct, Inc., 343 NLRB

25

perShuttle, meanwhile, the drivers may not arrange for a
substitute or surrogate, unless SuperShuttle approves. At
the time of the hearing, only 1 of 88 drivers employed a
relief driver. The Restatement observes that “an agreement that the work cannot be delegated” is a factor “indicating the relation of master and servant.”60
Thus, even under the majority’s own view, SuperShuttle performs the very core of its business with a work
force consisting entirely of unskilled workers, who are
otherwise prohibited from working in the industry and
who are subject to a uniform agreement imposed by the
company on each of them. This situation, it is fair to say,
is the antithesis of the independent-contractor relationship envisioned by the common law of agency. But there
are, of course, additional common-law factors to consider.
2. Factors the majority characterizes as neutral
In addition to the factors that the majority concedes
support finding employee status (engagement in a distinct business, work as part of the employer’s regular
business, the principal’s business, and skill required), the
majority treats length of employment as neutral, observing that drivers are required to sign the 1-year Unit Franchise Agreement, but “most drivers renew their agreements yearly.” On this record, however, it should be
apparent that the length-of-employment factor actually
weighs in favor of employee status.
1017, 1021 (2004) (finding drivers to be independent contractors, relying in part on fact that company’s agreement with drivers reserved
drivers’ right to provide services for other carriers). Restrictions on
working for a competitor certainly do not suggest an independentcontractor relationship. It is hard to imagine, for example, a company
engaging a skilled tradesman (like a plumber), with his own business,
to make repairs—but only if he agrees not to do similar repair work for
a competing company.
The majority “acknowledge[s] that the UFA’s prohibition on franchisees entering into business relationships with SuperShuttle’s competitors limits to some extent the potential for entrepreneurial opportunity that would otherwise come with ownership of their vans.” It is
obviously no answer to say, as the majority does, that this “limitation is
mitigated” because the drivers are free to drive for SuperShuttle as
much as they want. The point is that the drivers are locked into SuperShuttle’s system and cannot drive—at any time—for another company (including one of their own creation) that might allow them greater economic gains.
60 Restatement (Second) of Agency §220, comment h. The independent-contractor plumber may well choose to send someone else to do the
repair, but the employee plumber must show up for work himself if he
wants to keep his job. The facts here stand in contrast to those in Argix
Direct, supra, where some independent-contractor drivers had their own
independent contractors and hired their own drivers, independently
setting their terms and conditions of employment. 343 NLRB at 1020–
1021.

 26

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

The majority acknowledges, as it must, that “a longer
employment relationship indicates employee status.”61
Here, driver relationships with SuperShuttle have continued indefinitely, and General Manger Harcrow testified
that he had never denied a renewal request. As the Board
has observed, such an “open-ended duration” of the
working relationship indicates employee status.62
3. Factors the majority characterizes as supporting independent contractor status
The majority characterizes the extent of control exercised by the employer as a factor strongly supporting
independent contractor status. However, here the evidence of SuperShuttle’s control over the drivers and the
details of their work, as reflected in the Unit Franchise
Agreement, is overwhelming. The majority ignores or
minimizes that evidence at every turn.63
To begin, there is the obvious fact of the nonnegotiable Unit Franchise Agreement itself. Its identical
terms are imposed by SuperShuttle on every driver, and
there is no contractual limit at all on what SuperShuttle
may require the drivers to do while performing work.
Notably, the UFA requires drivers “not to deviate from
the standards, specifications and operating procedures as
specified in this Agreement . . . in order to ensure uni61 Id., comment j (“If the time of employment is short, the worker is
less apt to subject himself to control as to details and the job is more
likely to be considered his job than the job of the one employing
him.”). In this respect, as several others, driving for SuperShuttle is
very much SuperShuttle’s job—not the drivers’.
62 A. S. Abell Publishing Co., 270 NLRB 1200, 1202 (1984).
63 The UFA, imposed by the SuperShuttle on the drivers, is distinct
from the Airport Contract between SuperShuttle and the DFW Airport
Board, which allows SuperShuttle to operate at the airport subject to
certain conditions. The conditions required by the Airport Contract do
not include the UFA or its provisions, of course.
The majority points out that the Airport Contract does effectively
impose certain requirements on SuperShuttle drivers: they must wear a
uniform, maintain grooming standards, display SuperShuttle decals and
markings on their vans, and maintain the interior condition of their
vans. Because these requirements are imposed by a governmental
agency, they are immaterial (under current Board law) to the issue of
SuperShuttle’s control over the drivers. But, as I show here, SuperShuttle’s control is easily demonstrated without relying at all on the
Airport Board-imposed requirements. The majority identifies no example of SuperShuttle’s control on which I rely that is, in fact, required
by the Airport Contract. The UFA goes far beyond anything required
by the Airport Contract, and the majority does not argue otherwise.
Instead, it equivocates, pointing to the fact the UFA “states that many
restrictions imposed by the Airport Contract are effectively passed
along in the UFA.” But the Airport Contact does not (for example)
require SuperShuttle to impose the UFA on its drivers, to prohibit drivers from working for other transportation companies, to buy or lease a
van that meets SuperShuttle’s detailed specifications, to charge drivers
a “franchise fee” and a weekly system fee, to provide training in SuperShuttle’s “brand standards” and the operation of its communications
systems, and to use SuperShuttle’s specialized equipment and the
Nextel trip generating system.

formity and quality of services offered to the public.”
The UFA explains that the SuperShuttle system has been
“developed as a uniform method and philosophy of operation, customer service, marketing, advertising, promotion, publicity, and technical knowledge relating to the
airport shuttle service business.” Not even the requirements incorporated in the UFA are fixed. Rather, the
UFA authorizes SuperShuttle to “from time to time . . .
add to, subtract from or otherwise modify or change [the
driver’s] obligations under the [SuperShuttle] System,
including, without limitation, changes reflecting SuperShuttle’s adoption and use of new or modified Marks,
services, equipment and new techniques relating to the
promotion and marketing of shuttle services.” If this is
not control “by the agreement . . . over the details of the
work” (in the Restatement’s formulation), then it is hard
to grasp what control could be—even excluding the fact
that the UFA prohibits drivers from working for another
transportation company, a demonstration of employer
control under Board precedent (as already shown).
The majority virtually ignores what the Unit Franchise
Agreement is and what it does. Instead, the majority
insists that drivers “are free from control by SuperShuttle
in most significant respects in the day-to-day performance of their work.” The majority points out that drivers may decide when to work and which trips to accept.
But this hardly demonstrates freedom from control, in
light of the fact that if and when the drivers work—and
they can only work for SuperShuttle—they must operate
entirely within SuperShuttle’s Nextel trip generating system, which generates job “bids” and which can lead to
fines if a driver accepts a bid, but fails to complete the
pickup.64 There is no other way for drivers to perform
their services for SuperShuttle. And, of course, drivers
need to work, because they are required to make substantial weekly payments to SuperShuttle, whether or not
they are working; SuperShuttle, as noted, uniformly fixes
both the payments to be made and the fares the drivers
receive.65
64 The majority insists that the “Nextel device does not allow SuperShuttle to exercise control over the” drivers, but certainly it does.
The drivers must use the device, and without the device, they have no
way to find passengers. The Restatement considers “the extent of control which, by the agreement, the master may exercise over the details
of the work.” Finding passengers is surely a detail of the drivers’
work—and SuperShuttle controls it.
65 The majority necessarily acknowledges that “[f]ares received . . .
are set by SuperShuttle,” but still insists that even if drivers “could
negotiate their own fares, those fares are unlikely to vary significantly
from SuperShuttle’s fares” because “[a]s a practical matter, fares are set
by the competitive airport transportation market.” There is no evidence
in the record here to support the majority’s claim. Indeed, given the
crucial role of the Dallas/Fort Worth International Airport Board—
whose contract with SuperShuttle makes the company’s operations

 SUPERSHUTTLE DFW, INC.

The only SuperShuttle-imposed requirements on the
drivers that the majority is prepared to acknowledge involve (in addition to fare-setting) the required acceptance
of fare vouchers and coupons, vehicle inspections, a
“How am I driving?” sticker, and training. These “limited employer controls are vastly outweighed by the general control that [the drivers] have over their working
conditions.”66 If these supposedly “limited employer
controls” were really all that was involved in this case,
then the “extent of control” factor might pose a closer
question here. But what the majority omits from its
analysis, the failure to see the bigger picture, is what actually matters most.
The majority relies on four other factors to find independent-contractor status, but none provide much help to
SuperShuttle in carrying its burden of proof here. Indeed, contrary to the majority, some of these factors actually further support a finding of employee status.
Under Board precedent, the “method of payment” factor67 points away from an employment relationship, because the drivers do not share the fares they collect from
customers with SuperShuttle. As the majority explains,
the rationale for this principle is that “[w]hen an employer does not share in a driver’s profits from fares, the employer lacks motivation to control or direct the manner
and means of the driver’s work.” But here, as explained,
SuperShuttle does indeed have the authority to control
the manner and means of the driver’s work—and exercises it. Its “motivation” is obvious: it wishes to retain
its contract with the Airport Board. Thus, the “method of
payment” factor—a secondary consideration, at least as
possible in the first place—it is not at all clear that there is a “competitive airport transportation market.” And SuperShuttle itself, in the
UFA, has taken steps to eliminate competition in whatever market there
is, by prohibiting drivers from working for competing companies. In
short, the majority’s claim here is at best an unsupported speculation.
66 The majority also cites, as evidence of independent-contractor status, that the drivers are required to indemnify SuperShuttle, citing DialA-Mattress, supra, for the proposition that “[i]n employment relationships, employers generally assume the risk of third-party damages.”
326 NLRB at 891. However, SuperShuttle’s contract with the Airport
Board requires that all drivers be covered under its insurance policy,
and SuperShuttle, in turn, requires the drivers to reimburse SuperShuttle for the insurance it provides to them. In short, the insurance-related
dealings between SuperShuttle and the drivers are mediated by the
Airport Board, making the situation in Dial-A-Mattress easily distinguishable. The majority insists that the role of the Airport Board here
is immaterial, but just as controls on the drivers effectively imposed by
the Airport Board (not SuperShuttle) are not probative of an employment relationship, so the role of the Airport Board in connection with
liability insurance must be taken into account.
67 See Restatement (Second) of Agency §220(2)(g) (distinguishing
between “by time” or “by the job”).

27

the Board has explained it—should be given relatively
little weight.68
The majority cites the terms of the Unit Franchise
Agreement as evidence that the parties believed that they
were creating an independent-contractor relationship.69
Certainly the terms of the UFA are clear. But the agreement itself is imposed by SuperShuttle on the drivers,
with no opportunity for negotiation, and at least 30 percent of the drivers demonstrated their (correct) view that
they are employees, by signing union-authorization cards
in connection with the Union’s representation petition
filed with the Board. In similar circumstances, the Board
has held that the parties’-belief factor “point[ed] in no
clear direction,”70 and it does little here toward satisfying
SuperShuttle’s burden of proof.
Contrary to the majority, the “instrumentalities, tools,
and place of work” factor at best (for the majority) points
in no clear direction either, while there are very good
reasons to treat it as weighing in favor of employee status. True, drivers own or lease their vans. But SuperShuttle plays an important role in this process through
its affiliated leasing company (never mentioned by the
majority)—which makes it possible for drivers with bad
credit, in particular, to acquire a van (then outfitted to
meet SuperShuttle’s specifications).71 The majority says
that drivers’ “full-time possession of their vans facilitates
their ability to work whenever and wherever they
choose,” but under the UFA, the drivers are never free to
use their vans to work for any business except SuperShuttle. Perhaps even more significant, the drivers
undeniably could not perform their work without SuperShuttle’s required communications equipment, which
the company supplies and owns—and which drivers are
also not free to use independently, unlike the traditional
independent contractor and his work tools.
Finally, the majority cites the “supervision” factor as
favoring independent-contractor status, invoking the
drivers’ supposed “near-absolute autonomy in performing their daily work without supervision.” But drivers
are subject to the SuperShuttle System at all times. Pursuant to the UFA, drivers must adhere to the “mandatory
specifications, standards, operating procedures, and rules
for the SuperShuttle system” set forth in the UFA and the
Drivers’ Operations Manual, as well as the specific oper68 See Metro Cab, supra, 341 NLRB at 724–725 (inference of minimal control overcome by “evidence of the [e]mployer’s extensive control” over drivers’ work).
69 See Restatement (Second) of Agency §220(2)(i).
70 Lancaster Symphony, 357 NLRB at 1766.
71 One might compare this case to Argix Direct, supra, where the
Board observed that the putative employer did not own or lease any of
the independent-contractor drivers’ trucks or provide them with financial help to acquire trucks. 343 NLRB at 1020.

 28

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

ating procedures imposed by the trip generating system.
It is certainly true that no SuperShuttle supervisor sits in
the front passenger seat, telling drivers what to do, but
under the UFA, SuperShuttle clearly would have the
right to adopt such a practice, and drivers would have to
no choice but to accept it. SuperShuttle enjoys broad
authority, meanwhile, to discipline and terminate drivers,
both for driving-related infractions and for other violations of the UFA. In any case, the Restatement notes that
the “control or right to control needed to establish the
relation of master and servant may be very attenuated.”72
The “supervision” factor, as described in the Restatement, addresses “the kind of occupation, with reference
to whether, in the locality, the work is usually done under
the direction of the employer or by a specialist without
supervision.”73 Here, the unskilled drivers cannot fairly
be called “specialists.” Indeed, as the Restatement notes,
“[u]nskilled labor is usually performed by those customarily regarded as servants, and a laborer is almost always
a servant in spite of the fact that he may nominally contact to do a specified job for a specified price.”74
4. Overall assessment of the Restatement factors
Having addressed the Restatement factors, the majority
sums them up to conclude that the SuperShuttle drivers
are independent contractors—without ever mentioning
the established rule that it is SuperShuttle that bears the
burden of proof.75 The factors that the majority concedes
support employee status—the drivers are unskilled, driving is not a distinct occupation, and “SuperShuttle’s involvement in the business”—are deemed “relatively less
significant” and as “not outweigh[ing] those factors that
support independent-contractor status.” But the majority
makes little attempt to explain why this is so, beyond
claiming that certain factors that assertedly support independent-contractor status—control of the “principal instrumentality” (i.e., the drivers’ vans), the drivers’ “nearly complete control . . . over their daily work schedules
and working conditions,” and the “method of payment—
all provide the drivers with “significant entrepreneurial
opportunity.”
As already shown with reference to Board precedent
and the Restatement, the majority’s analysis of the “control” factor is badly mistaken, largely ignoring the Unit
Franchise Agreement and the extensive power it gives
SuperShuttle over the drivers. Just as mistaken, for the
same reasons, is the majority’s unjustified attempt to

minimize the importance of the factors that everyone
acknowledges support finding employee status. Invoking “entrepreneurial opportunity” does not cure the fundamental flaws in the majority’s reasoning, not only because this move has no good basis in traditional common
law principles, but also because the drivers’ supposed
“entrepreneurial opportunity” here is minimal at best. As
already demonstrated, it is SuperShuttle that creates, controls, and constrains that “opportunity.”
SuperShuttle drivers “bid” on trips, but unlike in conventional bidding (in which contractors contend for
work), drivers here lack the ability to compete on price,
quality of service, or any other distinguishing variable.
Instead, drivers compete primarily to be the first to register interest in a job via the mandated Nextel device—
hardly the type of competition that favors entrepreneurial
skill. Moreover, drivers’ job selections are guided largely by geographic proximity—what one driver characterized as “commonsense stuff”—rather than any business
strategy. In every instance of bidding, drivers are
providing what amounts to the same service for fixed
fares. Such a compensation arrangement “leaves little
room for the drivers to increase their income through
their own efforts or ingenuity.”76 Indeed, it cannot be
said that a driver “takes economic risk and has the corresponding opportunity to profit from working smarter, not
just harder.”77 Notably, SuperShuttle is seemingly free
to enter into non-negotiable franchise agreements with as
many drivers as it wishes, allowing it to control the number of drivers “competing” for jobs, while continuing to
fix fares that drivers may charge and the weekly payments they must make to SuperShuttle.
Unlike independent businesspeople who operate in the
marketplace, SuperShuttle drivers are expressly prohibited from working for competing transportation companies.78 The fact that vehicles are tailored specifically for
use as part of the SuperShuttle system significantly limits
their suitability for other business ventures in any case.
And, as a practical matter, drivers’ considerable financial
commitment to working for SuperShuttle—including
their vehicle investment and their weekly system fees
and insurance payments—all but requires them to work
exclusively for the company simply to recoup expenses.
Drivers do not set fares, offer discounts, solicit customers, or generate business in any way; nor do they “advertise for business or maintain any type of business operaSlay Transportation, supra, 331 NLRB at 1294.
Corporate Express Delivery Systems v. NLRB, 292 F.3d 777, 780
(D.C. Cir. 2002).
78 See Stamford Taxi, Inc., supra, 332 NLRB at 1373.
76

Restatement (Second) of Agency §220, comment d.
73 Id., §220(2)(c) (emphasis added).
74 Id., §220, comment i.
75 See, e.g., BKN, Inc., 333 NLRB 143, 144 (2001). Early in its
opinion, citing BKN, the majority does recite that “[t]he party asserting
independent-contractor status bears the burden of proof on that issue”
72

77

 SUPERSHUTTLE DFW, INC.

tion or business presence.”79 All these features of SuperShuttle’s relationship with its drivers “severely restrict the drivers’ entrepreneurial opportunities to engage
in . . . business independent of the [employer]”80 and
“weigh heavily in favor of employee status.”81
The SuperShuttle drivers, in crucial respects, resemble
the insurance agents found to be employees by the Supreme Court in United Insurance: (1) the drivers “do not
operate their own independent businesses, but perform
functions that are an essential part of the company’s
normal operations;” (2) they “need not have any prior
training or experience, but are trained by company supervisory personnel;” (3) they “do business in the company’s name and with considerable assistance from the
company and its managerial personnel;” (4) the agreement “that contains the terms and conditions under which
they operate is promulgated and changed unilaterally by
the company;” and (5) they have what amounts to “a
permanent working relationship with the company and
which they may continue as long as their performance is
satisfactory.”82 In short, applying traditional commonlaw principles, and even taking “entrepreneurial opportunity” into account—in a way that recognizes the “reality of the actual working relationship”83—the Board
should find that SuperShuttle has failed to carry its burden of proof to establish that the drivers are independent
contractors.
IV.
Nearly 75 years ago, the Hearst Supreme Court recognized the difficulties inherent in applying common-law
agency principles to employee-status questions under the
National Labor Relations Act—and accordingly concluded that Congress could not have intended the com79 See Metro Cab Co., 341 NLRB at 724; Corporate Express Delivery Systems, 332 NLRB 1522, 1522 (2000), enfd. 292 F.3d 777 (D.C.
Cir. 2002).
80 Stamford Taxi, supra, 332 NLRB at 1373.
81 Id.; see also Prime Time Shuttle, supra, 314 NLRB at 840.
82 390 U.S. at 259. In two respects, the SuperShuttle drivers differ
from the insurance agents: they do not account to SuperShuttle for the
fares they collect, and they do not participate in the company’s benefit
plans. But, for reasons explained, those distinctions do not outweigh
the overwhelming similarities here.
83 Id.

29

mon law to control.84 But Congress responded by making clear that this was precisely what it intended. As the
Court then observed in United Insurance, it is not for the
Board, or even the federal appellate courts, to somehow
mitigate the consequences of Congress’ choice by deploying magic phrases or shorthand formulas to simplify
or rationalize the unwieldy common-law test. The majority’s approach here might easily be called the “economic unrealities” test—impermissibly departing from
the common law (just like the “economic realities” test
endorsed in Hearst and overruled by Congress), but in no
way based on a real-world appraisal of working relationships.
If workers are independent contractors under the
common law, then they cannot be employees under the
National Labor Relations Act. But if, as here, workers
are employees under the common law, then they must be
treated as such for labor-law purposes. Calling the SuperShuttle drivers “entrepreneurs” or “small business
owners” does not make them any less employees entitled
to the protection of the National Labor Relations Act.
The drivers sought that protection presumably because
they understood, all too well, how limited their “entrepreneurial opportunity” really is. An agency charged
with “encouraging the practice and procedure of collective bargaining” (in the words of the statute) should act
accordingly, so that, if the drivers choose, the nonnegotiable Unit Franchise Agreement might be replaced
by a collective-bargaining agreement.
Dated, Washington, D.C. January 25, 2019
______________________________________
Lauren McFerran,
Member
NATIONAL LABOR RELATIONS BOARD
84 The Hearst Court observed that the “assumed simplicity and uniformity, resulting from application of ‘common-law standards,’ does
not exist.” 322 U.S. at 122. “Few problems in the law have given
greater variety of application and conflict in results than the cases arising at the borderland between what is clearly an employer-employee
relationship and what is clearly one of independent entrepreneurial
dealing.” Id. at 121 (footnote omitted).