NLRB Changes Its Independent Contractor Test—Again

The National Labor Relations Board (NLRB) issued a hotly contested decision earlier this month that makes it harder for employers to demonstrate that their workers are independent contractors. The legal test for employment status in this context—which determines whether workers have the right to organize—is especially important for gig economy companies that rely on contract labor to avoid the costs associated with employing workers.

In its 3-1 decision in Atlanta Opera, the NLRB overturned the 2019 decision in SuperShuttle DFW, Inc., issued by the Board during the Trump administration. The Board in SuperShuttle had decided that the question of whether workers have "entrepreneurial opportunity" is more important than nine other factors in determining worker classification.