In a highly anticipated, but not surprising, decision issued on June 13, 2023, the National Labor Relations Board (NLRB) reverted to past precedent, making it more difficult for individuals to be classified as independent contractors. In The Atlanta Opera, Inc., makeup artists, wig artists, and hair stylists who worked at the Atlanta Opera filed an election petition with the NLRB seeking union representation. In finding the individuals were not independent contractors—a crucial fact that would have scuttled the union petition—the Board rejected its 2019 decision in SuperShuttle. Distilled to its essence, under SuperShuttle, when an individual possessed entrepreneurial opportunity, it was presumed the employer exercised less control, which favored independent contractor status. When an individual possesses entrepreneurial opportunity, he/she functions as an independent business and experiences the risk/reward challenges faced by a business owner.
NLRB Returns to Obama-Era Independent Contractor Test
Instead, with Atlanta Opera, the NLRB returned to the standard adopted in its 2014 decision, FedEx Home Delivery, whereby entrepreneurial opportunity is but one factor among many geared toward discerning whether the evidence tends to show a supposed independent contractor is rendering services as part of an independent business. In so doing, the NLRB noted it intended “that the Board should give weight only to actual (not merely theoretical) entrepreneurial opportunity, and that...
stage at the Ninth Circuit, where pharmaceutical companies say a momentous new ruling "illustrates perfectly" the constitutional concerns of U. S. Supreme Court justices regarding FCA enforcement. ...