In FedEx Home Delivery, 361 NLRB 610 (2014) (FedEx II), the NLRB held that the inquiry would be guided by the non-exhaustive common-law factors enumerated in the Restatement (Second) of Agency, Section 220 (1958), and that “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.” Under FedEx II, entrepreneurial opportunity for gain or loss is just “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.”
