NLRB eyes overhaul of Trump-era independent contractor test

The seal of the National Labor Relations Board (NLRB) is seen at their headquarters in Washington, D.C., U.S., May 14, 2021. REUTERS/Andrew Kelly
  • NLRB seeking input on whether it should keep business-friendly 2019 test
  • Trump-era board overruled 2014 decision favoring employee status
  • Labor law protections do not apply to independent contractors

Dec 28 (Reuters) - The National Labor Relations Board could soon make it easier to show that workers are a company's employees and not independent contractors under federal labor law, allowing them to join unions.

The NLRB on Monday called for amicus briefs on whether it should stick with a test adopted by the board in 2019 and favored by business groups, or revive an Obama-era standard that made it more difficult to classify workers as independent contractors.

The call for briefs due Feb. 10 came in a case involving a union campaign by makeup artists and hairstylists for the Atlanta Opera. An NLRB regional director in June said the workers were the opera's employees.

Under the National Labor Relations Act, only employees can unionize and avail themselves of protections against retaliation when they advocate for better working conditions.

A representative of the Atlanta Opera did not immediately respond to a request for comment. Nor did the union, which is an affiliate of the International Alliance of Theatrical Stage Employees.

In a 2014 ruling involving FedEx drivers, the labor board said a worker's opportunity for profit or loss is only one factor to be considered in determining independent contractor status.

Five years later, the Trump-era board ruled that so-called "entrepreneurial opportunity" was the main factor in evaluating classification, narrowing the ability of workers and unions to prove employee status.

NLRB rolls back Obama-era test on worker classification

Misclassifying workers as independent contractors doesn't violate labor law - NLRB

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at