In a decision titled The Atlanta Opera, Inc. and issued by the National Labor Relations Board (“NLRB”) on Tuesday, June 13, 2023 (the “Decision”), the NLRB made it more difficult for employers to classify workers as independent contractors under the National Labor Relations Act (NLRA). The NLRA provides employees (but not independent contractors) with the right to organize and join a union.

The Decision eliminates the most recent independent contractor test, adopted by the NLRB in its 2019 SuperShuttle ruling (“SuperShuttle Test”), and replaces it with a standard previously adopted by the NLRB in its 2014 FedEx Home Delivery ruling (“FedEx Test”). Both tests, at their core, consider a non-exhaustive list of common-law factors when determining if a worker is properly classified as an independent contractor, which include the following:

• The extent of control the employer may exercise over the details of the work
• Whether the worker is engaged in a distinct occupation or business
• The kind of occupation, related to whether the work is usually done under the direction of the employer or by a specialist without supervision
• The skill required in the particular occupation
• Who supplies the instrumentalities, tools, and the place of work
• The length of time for which the worker is employed
• The method of payment, whether by time or by the job
• Whether the work is part of the regular business of the worker
• Whether the parties believe they are in an employer-employee relationship
• ...

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