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NLRB Ruling Likely to Make More Employees Out of Independent Contractors

June 14, 2023

The National Labor Relations Board (NLRB) made it tougher for employers to claim their workers are independent contractors.  In a decision this week, the Board overruled its 2019 SuperShuttle decision, and held that hairstylists and makeup artists working at the Atlanta Opera were actually employees eligible to unionize.

Its decision restored the so-called “FedEx ll” standard, which applies the same set of nonexhaustive common-law factors prescribed by the U.S. Supreme Court while factoring in workers' entrepreneurship to assess "whether a putative contractor is, in fact, rendering services as part of an independent business."  All four current members of the board found that the stylists were employees and are eligible to unionize with an International Alliance of Theatrical Stage Employees local.

This opinion represents a shift in labor decisions in favor of unions and narrows the concept of independent contractors, and the defenses that go with the concept.

The case is The Atlanta Opera Inc. and Make-Up Artists and Hair Stylists Union Local 798, IATSE, case number 10-RC-276292, before the National Labor Relations Board.

If you have questions about how this development may affect your workforce, please contact Johnson & Bell Employment Shareholders, Christopher J. Carlos or Caroline K. Vickrey.


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