Employee or Independent Contractor? Not so fast…

The National Labor Relations Board recently issued a decision finding that makeup artists, wig artists and hairstylists of The Atlanta Opera were in fact employees and not independent contractors.  In rendering its decision the Board scrapped the more employer-friendly standard implemented by the Trump Administration in favor of the more employee-friendly one used earlier by the Obama Administration. 

More specifically, in 2019, the NLRB had ruled in SuperShuttle DFW, Inc. 367 NLRB No. 75 (2019) that “entrepreneurial opportunity” is “the core of the common-law test” in making this classification determination.  Before that decision, the NLRB had focused on a 10-factor test whereby no one factor was dispositive or more important than the others, while also examining this “entrepreneurial opportunity” factor.  In The Atlanta Opera, 372 NLRB 95 (2023), the NLRB explicitly overruled SuperShuttle and reverted back to the earlier standard.  We expect an appeal given that the decision runs counter to the standard set out by the D.C. Circuit Court of Appeals.

Employers should consider this new stance when making classification determinations for purposes of extending rights under the NLRA to their employees.  Employers should also note that the determination of whether an individual is an employee or independent contractor varies for different employment-related matters and across different jurisdictions.