Third Try’s the Charm? National Labor Relations Board (Again) Narrows Definition of “Independent Contractor” Under the National Labor Relations Act

By Jim Paretti, Fred Miner, and David Ostern

On June 13, 2023, the National Labor Relations Board (“NLRB” or “the Board”) issued its long-awaited decision in The Atlanta Opera,1 in which it overturned prior law (SuperShuttle DFW, Inc.) and reinstated a narrower test for “independent contractor” (as opposed to “employee”) under the National Labor Relations Act (“NLRA” or “the Act”). As a practical matter, this means that more workers are likely to be classified as employees—who, unlike independent contractors, are permitted to form and join a union, and otherwise enjoy the workplace protections of the Act—than under prior law. The decision is not wholly surprising, insofar as NLRB General Counsel Jennifer Abruzzo announced early in her tenure that convincing the Board to overturn SuperShuttle was among her top priorities. The Atlanta Opera was approved three to one, with the Board’s single Republican member concurring in the result of the case but dissenting from the Board’s analysis and overruling of prior precedent.

In The Atlanta Opera, the Board reinstated the common-law agency test for determining worker status found in the Restatement (Second) of Agency §220.  Under that test, the Board looks at the following factors, assessing and weighing them, with no one factor being decisive:

  • The extent of control, which by agreement, the employer may exercise over the details of the work.
  • Whether or not the one employed is engaged in a distinct occupation or business.
  • 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.
  • The skill required in the particular occupation.
  • Whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work.
  • The length of time for which the person is employed.
  • The method of payment, whether by the time or by the job.
  • Whether or not the work is part of the regular business of the employer.
  • Whether or not the parties believe they are creating the relation of master and servant.
  • Whether the principal is or is not in business.

Applying this test, the Board concluded that subject makeup artists and hairstylists working for the Atlanta Opera were employees, not independent contractors. The Atlanta Opera marks another chapter in a 16+ year saga concerning the definition of independent contractor under the Act, which has already twice gone to the U.S. Court of Appeals for the District of Columbia Circuit, and seems destined to make a third visit.

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