In July, the National Labor Relations Board announced its long-anticipated decision in The Atlanta Opera Inc., which deals with how workers are classified. The decision is the latest in a long string of worker classification dramas playing out across the United States. Each has the potential to shake up dramatically how an employee is defined, with potentially profound consequences for millions of American workers who serve as independent contractors.
At issue in the Atlanta Opera case was whether stylists — hairstyles, make-up artists and wig artists — should be considered opera employees or independent contractors. The NLRB determined these stylists should be regarded as employees of the opera, making them eligible for certain employee protections, such as the right to unionize. The opera had previously considered these workers to be independent contractors.
In reaching its decision, the NLRB modified the independent contractor standard under the National Labor Relations Act. Until the Atlanta Opera decision, the NLRB operated under the earlier, more business-friendly, independent contractor standard established in SuperShuttle DFW Inc. in 2019.
That standard had generally classified people who operated their businesses as independent contractors, granting them significantly more freedom to pursue their own working arrangements. Specifically, the standard held that entrepreneurial opportunity should be the “principle by which to evaluate the overall effect of the...
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