• The NLRB has reinstated a multi-factor, common-law agency test for determining whether workers are employees or independent contractors for NLRA purposes, with no single factor being decisive.
• The practical result of this decision is that many more workers are likely to be classified as employees, and therefore be permitted to join unions and be covered by NLRA protections.
• This issue will likely be appealed to the D.C. Circuit for the third time.

On June 13, 2023, the National Labor Relations Board ("NLRB" or "the Board") issued its long-awaited decision in The Atlanta Opera,¹ in which it overturned prior law (SuperShuttle DFW, Inc.) and reinstated a narrower test for "independent contractor" (as opposed to "employee") under the National Labor Relations Act ("NLRA" or "the Act"). As a practical matter, this means that more workers are likely to be classified as employees—who, unlike independent contractors, are permitted to form and join a union, and otherwise enjoy the workplace protections of the Act—than under prior law. The decision is not wholly surprising, insofar as NLRB General Counsel Jennifer Abruzzo announced early in her tenure that convincing the Board to overturn SuperShuttle was among her top priorities. The Atlanta Opera was approved three to one, with the Board's single Republican member concurring in the result of the case but dissenting from the Board's analysis and overruling of prior precedent.

In The Atlanta Opera, the Board reinstated the...

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