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NLRB Issues Decision in Atlanta Opera, Inc. Adopting Position SWACCA Urged on Defining Who Is An Independent Contractor

The National Labor Relations Board (NLRB) issued its decision in Atlanta Opera, Inc. to reverse the previous Administration’s 2019 decision in SuperShuttle DFW, Inc. In 2019, the Board revised the standard it applies to determine whether a worker is an employee who has the protections of the National Labor Relations Act (NRLA), or an independent contractor who is not protected by the NLRA. The 2019 standard emphasized entrepreneurial opportunity in determining how independent a worker is from the employer.

In today’s decision, the Board returned to the previous standard it issued in the 2014 FedEx Home Delivery case, which treated entrepreneurial opportunity as a relevant consideration, but not a decisive factor to determine whether a worker is an employee or an independent contractor. This is the standard that SWACCA and our allies in the Construction Employers of America (CEA) advocated for in a February 2022 amicus brief in Atlanta Opera, Inc. In its brief, SWACCA and CEA argued that “The incentives to misclassify construction industry employees across the broad range of labor and employment laws are great,” and that a test that focuses “too much on ‘entrepreneurial opportunity’ can lead to less than equitable results, particularly in the construction industry [where] the use of multiple contractors on a single project is standard practice.”

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