Last week, yet another decision by a governmental agency chipped away at an employer’s ability to legally classify workers as independent contractors. In Atlanta Opera, Inc. and Make-Up Artists and Hair Stylists Union, Local 798, IATSE, the National Labor Relations Board (NLRB) overruled a decision it issued in 2019 in SuperShuttle DFW, Inc, when a majority of the NLRB's members had been appointed by then-President Trump. In its newest iteration, the NLRB reinstated the standard used to evaluate independent contractors versus employees, which existed prior to its 2014 decision in a case known as FedEx II. Readers who closely follow the law of labor relations know the NLRB regularly flip-flops on its precedents, as the composition of the five member NLRB changes to reflect the political party of the person occupying the White House.
The specific issue in Atlantic Opera was to determine if "Stylists” — who are the makeup artists, wig artists, and hairstylists who are needed to produce an operatic performance — should be considered employees. Historically, the Atlanta Opera classified Stylists as independent contractors, and the Opera used this classification as a means to prevent Stylists from seeking to unionize, as the National Labor Relations Act (the “Act”) specifically excludes independent contractors from the definition of employee. Therefore, independent contractors cannot organize or join a union under the Act.
In Atlanta Opera, the NLRB returned to control over the...
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