On June 13, there was a big ruling by the National Labor Relations Board, or NLRB for short, about a case involving The Atlanta Opera. Basically, they went against a rule that was set in 2019 during Trump’s time in office. This ruling had to do with the SuperShuttle DFW, Inc. decision. What’s important about this new ruling is that it tweaks the rules on who counts as an employee under the National Labor Relations Act (NLRA), and who’s just an independent contractor.
The thing is, the NLRA’s rules don’t apply to independent contractors. So, figuring out if a worker is an employee or an independent contractor is a really big deal for businesses. Both the Obama and Trump eras used this super old ten-factor test, made up in a 1968 Supreme Court case, to decide what a worker was. But the NLRB also looks at whether contractors can make or lose big money on their own, like if they can work for other businesses, hire their own team, or own their work.
Here’s where things got messy. The NLRB under Obama saw this money-making opportunity as one piece of the puzzle to figure out if a contractor was running their own show. But then, under Trump, the NLRB said this money-making opportunity was the main event of the test.
Fast forward to The Atlanta Opera ruling. It basically said, “Nope, we’re not focusing on this money-making stuff anymore to see if a worker is protected by the NLRA.” It argued against the idea that being an entrepreneur is the most important part of this legal analysis. The ruling decided to go back to the way things were done during the Obama era in a case involving FedEx, and said “thanks, but no thanks” to other standards like one they use in California, the “ABC test”. The NLRB still thinks that entrepreneurial opportunity matters, but insists on looking at the bigger picture, like if workers can work for other companies, own their work, or make key business decisions.
This decision keeps up the NLRB’s habit of favoring workers, making it easier for workers (and unions) to show they’re employees under the NLRA, not independent contractors.
Employers take note! There are a bunch of different laws that use different tests and definitions for workers. This Atlanta Opera ruling changes the game for who counts as a worker under the NLRA, giving employees (not contractors) the right to form unions and protections against unfair work practices. But remember, it doesn’t say anything about whether a worker is an employee or contractor under other state or federal laws.
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