In a decision that could make it easier for certain independent contractors to be considered employees, thus giving them the right to join unions, the National Labor Relations Board (NLRB or the Board) has returned to the more worker-friendly standard that was last employed by the Obama-era Board. See The Atlanta Opera, Inc. and Make-Up Artists and Hair Stylists Union, Local 798, IATSE, No. 10-RC-276292 (NLRB June 13, 2023).

While shifts like this are common since the Board majority traditionally changes when the President’s party changes, the Board’s decision is important for employers because employees are entitled to additional rights and benefits that are not afforded to independent contractors.

The Board decided that a worker’s entrepreneurial opportunity for gain or loss will not constitute a so-called “animating principle” of the standard. This means that the Board should (1) give weight only to actual, not merely theoretical, entrepreneurial opportunity for gain or loss and (2) determine whether the evidence tends to show that a worker is, in fact, rendering services as part of an independent business.

Only time will tell if the Board delivered a distinction without a significant difference for most cases. For example, while Republican member Marvin Kaplan disagreed with the Board’s decision to overrule the standard, he still agreed with the Board that the workers at issue were employees under either the former or current standard. In short, how the standard is...

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