John O'Connor illustration
McKnight’s Editorial Director John O’Connor
John O'Connor
John O’Connor

Well, here we go again.

In a move that will surprise nobody who has been paying attention, the National Labor Relations Board on Tuesday reversed itself on what it means to qualify as an employee — again.

Voting along party lines, the board reinstated an Obama-era independent contractor test. The result contradicts a more employer-friendly position that was adopted during the Trump administration. As for the Trump administration’s ruling, that, too, was a flip flop.

This week’s development is important, and from a senior living operator’s perspective, potentially dangerous. For it increases the number of workers covered by federal labor law (employees) from those who are not (independent contractors). At the very least, it will make it easier for reclassified workers to unionize or sue for unsafe working conditions.

Not that such things could ever happen in this field.

Like so many other political debates we are seeing, this one boils down to people with differing allegiances looking at the same facts and drawing different conclusions. Here’s what I mean:

Both sides have adopted the same 10 factors as benchmarks. They are:

  • The extent of control the employer has over the worker
  • Whether the worker is engaged in a distinct job or business
  • The kind of job the worker has, with reference to whether the work is usually done under the direction of the employer or by an unsupervised specialist
  • The skill required in the particular job
  • Whether the instrumentalities, tools and place of work are provided by the employer or the worker
  • The length of time the person works for the employer
  • The method of payment
  • Whether the work is part of the employer’s regular business
  • Whether the parties believe they are creating a master and servant relationship
  • Whether the principal is in the business

That would seem to be cut-and-dried, right? Not so fast.

What these come down to is the extent of an employer’s control over an individual’s work. And that’s where views are anything but unified. Of special note here is the concept of “entrepreneurial freedom.” In other words, to what extent is the person in question running an independent business subject to unique losses or gains?

Democrats generally feel that entrepreneurial freedom applies to far fewer workers than do Republicans, and that more people, therefore, should be classified as employees, not independent contractors. And as it happens, Democrats currently control the White House.

My advice to senior living operators who find this latest ruling partisan and completely unfair? It’s simple, really: Show a little patience.

John O’Connor is editorial director for McKnight’s Senior Living and its sister media brands, McKnight’s Long-Term Care News, which focuses on skilled nursing, and McKnight’s Home Care. Read more of his columns here.