In a momentous decision, the National Labor Relations Board has chosen to effectively reinstate the Obama administration’s 2014 FedEx II standard and abandon Trump’s 2019 Supershuttle standard as a result of a ruling made on the case of Atlanta Opera, Inc. and Make-Up Artists and Hair Stylists Union, Local 798, IATSE. Under the FedEx II standard, all of the listed and unlisted factors of employment will hold equal weight in determining classification status as opposed to Supershuttle, which primarily emphasized the degree of entrepreneurial opportunity for gain or loss involved in the job. 

Essentially, they have ruled in favor of protecting workers’ rights to union representation and benefits while addressing bad-faith misclassifications by companies. 

In a statement, Chairman Lauren McFerran said, “In today’s decision, the Board returns to the independent contractor test articulated in FedEx II, and reaffirms the Board’s commitment to the core common-law principles that the Supreme Court has determined should guide the Board’s consideration of questions involving employee status. 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.”

The case was brought about in response to the Atlanta Opera blocking its hair and make-up artists from voting for unionization by claiming that they were independent contractors in the spring of 2021. Once the ballots were unsealed and counted this past March, it was discovered that the Atlanta Opera’s hair and make-up artists had voted unanimously in 2021 to unionize with the support of IATSE Local 789, which is now allowed under the ruling, as they have retained the designation of covered employees. 

“This upholds what we’ve known for years; these workers always deserved the right to union representation and the benefits that come with it,“ explained IATSE International President Matthew D. Loeb. “We hope this ruling sends a strong message to companies that using misclassification as a union-busting tactic will simply not stand.”