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ARTICLE · 16 JUNE 2023

NLRB Modifies Independent Contractor Test

Ogletree, Deakins, Nash, Smoak & Stewart
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On June 13, 2023, the National Labor Relations Board (NLRB) overruled its 2019 independent contractor standard focused on whether workers have "entrepreneurial opportunity" ...

United StatesEmployment and HR
Greg Guidry
Greg Guidry
Eric C. Stuart
Eric C. Stuart
Zachary V. Zagger
Zachary V. Zagger
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On June 13, 2023, the National Labor Relations Board (NLRB) overruled its 2019 independent contractor standard focused on whether workers have "entrepreneurial opportunity" and returned to a common law multi-factor analysis that could lead to more workers being found to have been improperly classified as independent contractors.

In The Atlanta Opera, Inc., the Board overturned its 2019 ruling in SuperShuttle DFW, Inc., and returned the Board to a 2014 Obama-era standard that had focused on whether the workers in question work for separate, independent businesses. Applying this framework, the Board ruled that makeup artists, wig artists, and hairstylists working for the Atlanta Opera—who filed a petition seeking representation by a union—are employees under Section 2(3) of the National Labor Relations Act (NLRA) and not independent contractors.

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