A ruling this week by the National Labor Relations Board overturns a Trump-era decision about how to determine whether a worker is an independent contractor or an employee. The latest ruling looks at a range of factors like whether a worker has to provide their own tools for work. The Trump-era standard said a worker’s “entrepreneurial opportunity” should be the main determining factor in their status. But this latest decision could face a court challenge.

There’s a lot at stake for workers when it comes to how they’re classified by their employer, says Sally Dworak-Fisher, an attorney with the National Employment Law Project.

“If you’re an employee, you have rights and protections. If you’re an independent contractor, you have risks and responsibilities,” explained Dworak-Fisher.

But the standard for defining who is who has flip-flopped a lot in the last 15 years, says Jim Paretti with the law firm Littler Mendelson.

“In 2007, the board says the standard for determining an independent contractor is X, goes on appeal in 2009. The D.C. circuit says, ‘well, actually no, the standard is Y,'” said Paretti.

And they’ve gone back and forth a few times since. Now, the newest NLRB ruling brings back a standard that could classify more people as employees. That’s making companies like Uber and Lyft pay close attention.

Brishen Rogers, a law professor at Georgetown, says the matter is far from settled. 

“I think we’re going to be litigating this issue for years, if not decades to come,” said Rogers.

Unless, he says, Congress decides to make clearer laws around contract work.

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