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