NLRB eyes overhaul of Trump-era independent contractor test

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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

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  • 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.

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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 daniel.wiessner@thomsonreuters.com.