Labor Board Widens Definition Of Employee

The National Labor Relations Board (NLRB) returned Tuesday to an Obama-era standard for determining independent-contractor status — effectively broadening the number of people who have a protected right to unionize under the National Labor Relations Act.

The ruling rejected the 2019 decision that the “animating principle” of determining employee status of independent contractors should be the entrepreneurial opportunity for gain or loss, or the chance to make more money based on one’s entrepreneurial spirit. The original decision affected gig workers, such as Lyft and Uber rideshare drivers.

“Applying this clear standard will ensure that workers who seek to organize or exercise their rights under the National Labor Relations Act are not improperly excluded from its protections,” NLRB Chair Lauren McFerran said in a press release.

The decision to broaden the standard was made in a 3-1 party-line vote.

The case brought before the NLRB involved determining the independent-contractor status of wig, hair and makeup stylists at The Atlanta Opera.

Marvin Kaplan, the single Republican on the four-person board, dissented to broadening the definition of employee. But, he agreed with his colleagues that the stylists should be granted employee status and have the right to unionize.

He said the stylists don’t have enough “entrepreneurial opportunity” to gain or lose money and, therefore, under the previous Trump-era definition, should still be considered employees.


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