The National Labor Relations Board (NLRB) published a notice on Dec. 27 in The Atlanta Opera, Inc. 371 NLRB No. 45 (2021) inviting parties and amici to submit briefs concerning if the NLRB should reconsider how it "determines the independent contractor status of workers," a statement from the NLRB said.

The NLRB accepted briefs in Washington, D.C. that are not longer than 20 pages up until Feb. 10, 2022. Parties, except amici, were allowed to file responsive briefs of up to 30 pages until Feb. 25, 2022, and motions for time extensions will not be granted, according to nlrb.gov.

"Forty-two amicus briefs were filed with the NLRB in response to its December 27, 2021 invitation," according to The National Law Review. "The amicus briefs presented a variety of arguments to the Board ranging from returning to FedEx Home Delivery, not departing from SuperShuttle DFW, or abandoning the Restatement (Second) of Agency entirely and adopting a wholly new independent contractor standard." 

Interested parties were allowed to use the briefs as an opportunity to address if the board should "adhere to the independent-contractor standard in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019)," give an explanation of reasoning if the answer to question one is no and respond to if the board should return the standard to that of FedEx Home Delivery, 361 NLRB 610, 611 (2014) either with or without modifications.

"The United States Department of Justice submitted an amicus brief on behalf of neither party about the potential antitrust implications of the Board employing a too narrow statutory definition of Employee under the Act, whether coming from independent contractors trying to unionize or businesses misclassifying their workers as independent contractors to gain a competitive advantage over rivals," The National Law Review reported.

According to PYMNTS, if the NLRB changed the standard of determining the independent contractor status of work to the previous interpretation, more emphasis on "economic dependency" between a contractor and employer may result.