On Tuesday, the National Labor Relations Board (NLRB) overturned a Trump-era precedent, changing the test used to determine whether workers seeking protection under federal labor laws are employees or independent contractors. The new decision involves makeup artists and hairstylists working at the Atlanta Opera. The board unanimously concluded that the workers meet the appropriate test for employees, and are therefore covered under the terms of the National Labor Relations Act.

In reaching this decision, the NLRB majority overturned its 2019 SuperShuttle decision. In that case, the board majority concluded that the employee/contractor issue turns on an “entrepreneurial opportunity” test that looks at the workers’ profit and loss risk associated with the work. The new decision rejects that test in favor of the one in place before 2019, that takes an overall view of the common law elements of employment in order to make the classification decision. The sole Republican member of the NLRB agreed that the workers in question are employees rather than contractors, but concluded that this result did not require revisiting SuperShuttle.

This is yet another in a string of NLRB precedents that appear to change based on the political affiliation of the NLRB majority. For employers, this decision means that gig workers and other persons considered independent contractors may be able to organize and exercise other rights under federal labor laws applicable to employees.

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