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SWACCA Leads CEA in Drafting a Brief to the NLRB Regarding Independent Contractor Status in the Atlanta Opera, Inc. Case

Today SWACCA, as part of the Construction Employers of America (CEA), filed a brief of amicus curiae with the National Labor Relations Board in the case Atlanta Opera, Inc.  At issue in this case is the employee vs. independent contractor standard under the National Labor Relations Act (NLRA).  Independent contractors are excluded from coverage under the NLRA and therefore are ineligible to unionize and do not enjoy any of the other worker protections of the NLRA.  In 2019, the Board revised the standard it applies to determine whether a worker is an employee who has the protections of the NLRA, or an independent contractor who is not protected by the NLRA.  The 2019 standard, established in the case SuperShuttle DFW, Inc., emphasized entrepreneurial opportunity in determining how independent a worker is from the employer.  The CEA argued in its amicus brief that the Board should return to the previous standard, established in the 2009 case FedEx Home Delivery, which treated entrepreneurial opportunity as a relevant consideration but not a decisive factor.

The issue of who is an employee for purposes of the NLRA is particularly important in the construction industry, where misclassification is common and can provide unscrupulous employers with a significant competitive advantage over its honest, law-abiding and responsible contractor competitors.  In its brief, the 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.”  CEA urged the Board to return to the FedEx standard.

The case is Atlanta Opera, Inc. and Make-Up Artists and Hair Stylists Union.  A copy of the amicus brief filed by CEA can be accessed here.

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