NLRB sings old tune in Atlanta Opera

The National Labor Relations Board (NLRB) has further complicated the independent contractor classification picture. In its recent The Atlanta Opera decision, the Board defied a contrary federal circuit court ruling and preempted the Department of Labor’s (DOL) proposed regulations on the same subject, all to overturn a despised Trump-era ruling.

The matter at issue was how to weigh and assess the 10 common law factors—such as amount of control a company has over the work, the skill required for the job, and how the worker is paid—that everyone agrees should be part of the analysis of an employee’s classification. The sticking point is entrepreneurial opportunity, and this factor is directly related to the explosive growth of the gig economy—regardless of what workers are before the Board.

The current conflict started in 2009 when the Board’s decision in FedEx I, which found the drivers to be employees, was not enforced by the D.C. Circuit. The court noted that the Board hadn’t properly valued the drivers’ entrepreneurial opportunity.

Undeterred, in 2014, the Board found a different group of FedEx drivers to be employees. Not surprisingly, the D.C. Circuit applied the “law-of-the-circuit doctrine” and again refused to enforce the Board’s ruling. Soon after the administration changed, the Trump Board issued the SuperShuttle decision, which was in keeping with the circuit court’s instruction and made entrepreneurial opportunity the preeminent factor in making classification decisions.

Ruling