In what will have a significant impact on the employment status of “gig” economy workers under federal labor law, the National Labor Relations Board (“NLRB” or “Board”) seems poised to revert to a more worker-friendly standard for determining independent contractor or employee status.

On December 27, 2021, the NLRB invited public input on whether it should abandon the current standard for determining if a worker is properly classified as an independent contractor or is an “employee” under the National Labor Relations Act (“NLRA”). See The Atlanta Opera, Inc., NLRB No.10-RC-276292 (2021).

The case at issue involves a determination of whether the workers – makeup artists, wig artists, and hairstylists – are employees of The Atlanta Opera, Inc. or independent contractors. In reconsidering the standard, the Board asks interested amici to provide responses to the following two questions:

1. Should the Board adhere to the independent-contractor standard in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019)?
2. If not, what standard should replace it? Should the Board return to the standard in FedEx Home Delivery, 361 NLRB 610, 611 (2014), either in its entirety or with modifications?

In SuperShuttle, the Board returned to the traditional common-law agency test for determining whether a worker is an employee or independent contractor, overturning the 2014 Board decision in FedEx. The current test considers the following factors under the totality of the circumstances:

(a) The extent of...

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