In a hotly-anticipated decision, The Atlanta Opera, Inc., 372 NLRB No. 95 (2023), the National Labor Relations Board ("NLRB" or "Board") overturned the existing legal standard for determining whether a worker is an employee or an independent contractor for purposes of the National Labor Relations Act ("NLRA"). Employees have rights under the NLRA, including the right to join a union, whereas independent contractors do not. The Board has returned to a former standard making it easier for workers to establish "employee" status.
The NLRA explicitly excludes independent contractors from coverage under the Act. In a 1968 decision, NLRB v. United Insurance Co. of America, 390 U.S. 254 (1968), the Supreme Court held that the common-law agency test applied to employee-independent contractor classifications under the NLRA. The Court specified that in determining whether a worker is an employee or an independent contractor under the common-law test, "all of the incidents of the relationship must be assessed and weighed with no one factor being decisive." In later decisions applying the common-law agency test to worker classification questions, the Supreme Court employed Section 220(2) of the Restatement (Second) of Agency—a non-exhaustive, multifactor test—as authoritative guidance to determine whether a worker is acting as an employee or independent contractor.
In a 1998 case, Roadway Package System, 326 NLRB 842 (1998), the Board endorsed the use of the...
The court found the relator did not allege specific reimbursement requests or facts linking challenged promotional statements to government payments. A Maryland federal district court dismissed a ...