A new ruling from the National Labor Relations Board (NLRB) alters the standard employers must use to determine whether someone qualifies as an independent contractor.

In the June 13 ruling, the board concluded that the makeup artists, wig artists and hairstylists who work at the Atlanta Opera are employees, not independent contractors. The workers had filed an election petition with the board, seeking union representation.

The NLRB rejected the previous ruling in SuperShuttle that entrepreneurial opportunity for gain or loss should be the animating principle of the independent contractor test. Instead, it said entrepreneurial opportunity should be taken into account alongside a list of traditional common-law factors.

Those factors include:

• The extent of control the employer exercises over the details of the work.
• Whether the work is usually done under the direction of the employer or without supervision.
• Whether the worker is engaged in a distinct occupation or business.
• How much skill is required in the particular occupation.
• Whether the employer supplies the tools and the place of work.
• The length of time for which the worker is employed.
• The method of payment, whether by the hour or by the job.
• Whether the work is a part of the regular business of the employer.
  

"Applying this clear standard will ensure that workers who seek to organize or exercise their rights under the National Labor Relations Act (NLRA) are not improperly excluded from its protections," said NLRB...

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