Law360 Publishes Robert Lian, James Crowley Article on NLRB ‘Independent Contractor’ Test
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“NLRB's Stricter Contractor Test May Bring Organizing Risks,” an article by Akin labor & employment practice head Robert Lian and counsel James Crowley, has been published by Law360.
The article looks at what the authors call “a seemingly basic legal question: Is a worker an employee of the company, or an independent contractor?”
They look at a case (Atlanta Opera, Inc., 372 NLRB No. 95 (2023)) before the National Labor Relations Board (NLRB) that involved a Board holding that a group of makeup artists, wig artists and hairstylists who work at the Atlanta Opera are employees and not independent contractors, per the definitions of those terms in the National Labor Relations Act (NLRA).
In this case, the Board majority reversed its 2019 rule that entrepreneurial opportunity was an important principle in evaluating common-law factors, per the multifactor common-law test that the NLRB has long applied in determining employee vs. independent contractor status. By doing so, the Board relegated entrepreneurial opportunity to only one aspect of this determination.
The authors note, “The board's decision is important because it could potentially bring more workers who were classified as independent contractors within the coverage of the NLRA, and give them the right to unionize and bargain collectively with employers.”
They then delve into the history of the employee/independent contractor determination, looking at the Supreme Court’s 1968 decision in NLRB v. United Insurance Co. of America and its role in the development of a 10-factor list in applying common-law agency principles, and then analyze Atlantic Opera in that light.
They conclude by noting, “The test set forth in Atlanta Opera creates a further level of complexity for businesses that regularly use independent contractors as part of their business model and, if ultimately upheld, will require companies to reconcile that standard against the tapestry of other legal tests for determining worker status, including the soon-to-be-issued final rule from the DOL [Department of Labor] under the Fair Labor Standards Act.”
To read the full article, click here.
