A National Labor Relations Board ruling from June 13, 2023, makes it more likely that a worker will be considered an employee under the National Labor Relations Act.
Atlanta Opera involved the classification of hair stylists who worked at the Atlanta Opera. The stylists’ time commitment ran seven to nine hours on show days, but the opera considered the stylists independent contractors because they were allowed to do other jobs.
The NLRB held that entrepreneurial opportunity is only a factor in the Board’s evaluation. The Board’s Democratic majority overruled SuperShuttle, a 2019 case in which the Trump-era Board ruled that entrepreneurial opportunity “has always been at the core of the common law test.”
In essence, Atlanta Opera reinstates the FedEx II test from 2014. In FedEX II, the Obama-era Board limited the significance of entrepreneurial opportunity, which made it more likely that the Board would find employee status and bring a worker under the NLRA’s protections.
In Atlanta Opera, the Board took entrepreneurial opportunity into account, along with the traditional common-law factors, by asking whether the evidence shows that a supposed independent contractor is rendering services as part of an independent business. The Board determined that the evidence did not show that the stylists rendered services as part of their own independent businesses.