## Facts

- The Atlanta Opera engaged makeup artists, wig artists, and hairstylists to provide hair, wig, and makeup services for opera productions on a show-by-show basis.
- A union filed a representation petition seeking to represent the stylists, asserting they were statutory employees under NLRA § 2(3).
- The Acting Regional Director found the stylists were employees and directed an election.
- The opera sought Board review, contending the stylists were independent contractors under the Board’s then-governing approach emphasizing entrepreneurial opportunity.
- The opera exercised detailed control over the stylists’ work, including character appearance requirements and ongoing direction and feedback.
- The opera controlled schedules for rehearsals and performances, including timing and overtime availability.
- The stylists were paid hourly.
- The opera supplied the workplace and equipment needed for the work.
- The opera argued the stylists’ ability to take other engagements showed contractor status; the stylists’ work was central to producing performances.

## Issues

1. Whether the opera’s makeup artists, wig artists, and hairstylists were NLRA § 2(3) employees or excluded independent contractors.
2. Whether the Board should treat “entrepreneurial opportunity” as the controlling principle of the common-law test, or as one consideration within a multifactor agency analysis.

## Decision

- The Board overruled the prior standard to the extent it made entrepreneurial opportunity the “animating principle” of the independent-contractor inquiry.
- The Board reaffirmed that worker status under NLRA § 2(3) is determined by the common-law agency test reflected in Restatement (Second) of Agency § 220, weighing all relevant factors with no single factor controlling.
- Applying that standard, the Board held the stylists were employees, not independent contractors, and were eligible to proceed to a representation election.
- One member dissented from overruling the prior standard but agreed the stylists were employees on the record.

## Legal Principles

- Independent-contractor status under NLRA § 2(3) turns on the common-law agency test, assessed through a nonexclusive set of factors (including control, method of payment, provision of tools/place of work, skill, duration, and whether the work is part of the regular business).
- All incidents of the relationship must be assessed and weighed; no single factor is decisive.
- Entrepreneurial opportunity is relevant only as part of the broader common-law analysis and is evaluated in practical terms, focusing on actual (not merely theoretical) opportunities and the extent to which the putative employer’s constraints permit operation as an independent business.
- Evidence that a worker can accept other work, without more, does not establish that the worker renders services as part of an independent business.

## Conclusion

The Board restored a balanced, multifactor common-law framework for NLRA independent-contractor determinations, rejected an entrepreneurship-centered approach, and concluded that the Atlanta Opera’s stylists were statutory employees entitled to proceed in the representation process.


The Atlanta Opera, Inc., 372 N.L.R.B. No. 95 (2023)