A pivotal decision by the National Labor Relations Board (NLRB) on Tuesday has furthered the rights of workers who are misclassified as independent contractors, paving the way for union representation. The board’s ruling in Atlanta Opera, Inc. and Make-Up Artists and Hair Stylists Union, Local 798, IATSE sets a groundbreaking precedent, aiding workers in the gig economy as they seek the benefits and protections of union representation, while also limiting bad-faith misclassification efforts by companies.
As a result of the decision, the Board has now returned to the 2014 FedEx Home Delivery (FedEx II) standard for determining independent contractor status under the National Labor Relations Act (NLRA) and overruled the previous Trump NLRB’s SuperShuttle (2019) standard. In applying the Obama NLRB’s standard, the Board found that the makeup artists, wig artists, and hairstylists who work at the Atlanta Opera are not independent contractors, excluded from the Act, but rather are covered employees. The decision of the Board was nearly unanimous, with Board members McFerran, Wilcox, and Prouty, issuing the decision. Kaplan, the lone Republican member, dissented from the overruling of the SuperShuttle (2019) standard, but agreed with the majority in finding that the Atlanta Opera’s hair and makeup artists were employees, not independent contractors, and were therefore permitted to unionize under the NLRA.
In Spring 2021, employees who perform the art of Hair Styling and Make-up at The Atlanta Opera sought the opportunity to vote as to whether they wished to be represented by IATSE Local 798 through an election conducted by the NLRB. However, The Atlanta Opera attempted to prevent the workers from voting on union representation by arguing to that the workers are independent contractors rather than employees. In March, the NLRB unsealed and counted Atlanta Opera Hair and Makeup Artists’ unionization ballots after the ballots were impounded for nearly two years. The results revealed Atlanta Opera Hair and Makeup artists unanimously supported joining together with the backing of IATSE Local 798.
Because of the prolonged period in which the NLRB ruling was pending, the decision comes as IATSE Local 798 is on the cusp of securing a collective bargaining agreement with the Opera. “We are proud to be representing these workers who not only stood strong but stayed steadfast in their conviction for these two long years,” said Local 798 President Angela Johnson. “They have raised the bar for all of our members. This campaign for just over a dozen workers did great things.”
IATSE International President Matthew D. Loeb said, “This upholds what we’ve known for years, these workers always deserved the right to union representation and the benefits that come with it. We hope this ruling sends a strong message to companies that using misclassification as a union-busting tactic will simply not stand.”
This landmark ruling is expected to have a profound impact on the gig economy, providing workers with greater protections and benefits, and deterring companies from misclassifying workers to impede unionization efforts.
