Circuit Court of Appeals rejected the Board’s determination, and held instead that the drivers were independent contractors. In 2007, in a case involving home delivery drivers for Federal Express (“FedEx Home”), the Board concluded that the subject drivers were employees and thus able to organize under the Act. Court of Appeals for the District of Columbia Circuit, and seems destined to make a third visit. The Atlanta Opera marks another chapter in a 16+ year saga concerning the definition of independent contractor under the Act, which has already twice gone to the U.S. Whether the principal is or is not in business.Īpplying this test, the Board concluded that subject makeup artists and hairstylists working for the Atlanta Opera were employees, not independent contractors.Whether or not the parties believe they are creating the relation of master and servant.Whether or not the work is part of the regular business of the employer.The method of payment, whether by the time or by the job.The length of time for which the person is employed.Whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work.The skill required in the particular occupation.The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.Whether or not the one employed is engaged in a distinct occupation or business.The extent of control, which by agreement, the employer may exercise over the details of the work. ![]() Under that test, the Board looks at the following factors, assessing and weighing them, with no one factor being decisive: In The Atlanta Opera, the Board reinstated the common-law agency test for determining worker status found in the Restatement (Second) of Agency §220. 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. ![]() 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. 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. 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”). This issue will likely be appealed to the D.C. ![]()
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