In recent developments, the US government, specifically the National Labor Relations Board (NLRB), has made several moves that indicate their continued support for unions. This shift has been characterized by a series of rulings and policy changes aimed at strengthening the rights of workers and their ability to unionize, which could undermine the interests of management and business owners.
One of the most significant developments is the NLRB’s decision to modify the standard for determining independent contractors in its Atlanta Opera decision. The Board returned to the 2014 FedEx II standard and overruled the 2019 SuperShuttle ruling, effectively broadening the scope of who can be considered an “employee” rather than an “independent contractor.”
The Board concluded that the makeup artists, wig artists, and hairstylists at the Atlanta Opera were not independent contractors but employees covered under the Act. The ruling, reverting to the Obama-era test, considers factors such as the amount of control companies exercise over workers and the degree to which workers depend on a single company to make a living. This decision could lead to a surge in unionization efforts across various industries, including the gig economy, as more workers now qualify for the protections the Act offers.
According to Education and the Workforce Committee Chairwoman Virginia Foxx (R-NC), “The NLRB just can’t hide its gross infatuation with Big Labor. The decision rendered in Atlanta Opera restores previous Board case law rejected by the US Court of Appeals for the DC Circuit. This decision is the latest sweepstakes-style giveaway to Big Labor by the Biden administration. Ultimately, it will lead more independent contractors to become classified as employees and eligible to be unionized.”
In another case involving a CVS Pharmacy store in Southern California, the NLRB ruled that the company violated federal labor law by announcing and providing raises to workers during an ongoing union organizing campaign.
There are many other examples of this type of support that are noteworthy, including the NLRB’s stance on noncompete agreements, arguing that student-athletes be considered employees, and the support showed by President Biden for unions, complaints against CEOs, gifts to unions from the Infrastructure bill, and speeding up compliance with Board-ordered remedies.
These developments pose significant challenges for small businesses and those in the gig economy. Increased union activity could lead to higher labor costs and more regulations, potentially stifling innovation and growth.
In light of these changes, it is not surprising that there has been pushback against the NLRB’s authority, with a GOP lawmaker introducing a bill to curb the Board’s authority over small businesses and a notable decision from SCOTUS in Glacier Northwest.
These developments represent a shift towards labor-friendly policies, which may contradict some management interests. These changes could increase labor costs for many businesses and alter the dynamics of labor relations in various industries. You can hear more detailed commentary on Glacier from our own Phil Wilson on the Labor Relatedly podcast.
