4As Joins Labor Coalition to Oppose NLRB Changes to Independent Contractor Rules

In Feb. 2022, the 4As joined the Coalition for a Democratic Workforce and nine other large business trade associations in filing a joint amicus brief in the Atlanta Opera, Inc. 371 NLRB No. 45 (2021) case currently pending before the National Labor Relations Board (NLRB). The brief expresses support for preserving the status quo for independent contractor (IC) classification criteria determined in the NLRB’s 2019 SuperShuttle decision. The case specifically impacts eligibility criteria for the purposes of determining whether a worker is an independent contractor or employee, with the latter deemed eligible for collective bargaining rights under the National Labor Relations Act. The 2019 SuperShuttle decision, imposed by the Trump-era NLRB, marked a rebuke of the “economic realities” test instituted in a previous Obama-era NLRB decision in FedEx, Inc.

The NLRB’s decision on whether it should expand the definition of “independent contractor” under the National Labor Relations Act (“NLRA”) rehases a largely ideological labor policy debate that has plagued independent contractor classification for the last eight years.Given the new liberal majority of the body, the NLRB seems poised to revert to a more worker-friendly standard for determining independent contractor or employee status. Because of their business model, upholding the common law test is particularly important for employers that rely on contingent workforces or franchisees.

Due to the advertising industry’s continued reliance on freelance talent for flexible project-based staffing solutions, agencies may be interested in following these developments to help them understand possible changes to federal labor laws and liability concerning proper worker classification. Expanding access for independent contractors to unionization rights could also have a domino effect on other labor issues including opening up the option for collective bargaining to raise contract fees, gain new benefits, expand eligibility for paid leave, and subject agencies to possible demands for more favorable working conditions.

What the NLRB is pursuing with the Atlanta Opera case is separate from a possible new definition of independent contractor status that could come out of the DOL Wage and Hour Division later in 2022.

A memo outlining the current regulatory landscape for independent contractor classification issues and why the Atlanta Opera case matters for agencies can be found here.