NLRB revises test for determining status of workers once again

On June 13, 2023, in a 3-1 decision, the National Labor Relations Board (NLRB) overruled its own 2019 decision in SuperShuttle DFW and returned to the test of statutory employee status in its 2014 FedEx II decision, the terms of which it carefully calibrated. In doing so, the Board found that the Atlanta Opera’s makeup artists, wig artists, and hairstylists (who worked at the Opera only when operatic productions were staged) are employees within the meaning of the National Labor Relations Act (NLRA) and not independent contractors.

The NLRB refused to apply the 2009 federal appeals court ruling in FedEx I, which held that entrepreneurial opportunity is an animating principle of the independent contractor test, and accused the court of misperceiving Board law. The Board decision in Atlanta Opera leaves no doubt that entrepreneurial opportunity isn’t a super-factor in the analysis of employee status and is only one factor to be considered in analyzing independent contractor versus employee status. The NLRB found that its prior SuperShuttle DFW holding is no longer the law since it conflicts with common law agency principles and U.S. Supreme Court and NLRB precedent.