Eleventh Circuit Reverses NLRB: Atlanta Workers are Independent Contractors and Not Employees

In a rare blow to the overreaching influence of the National Labor Relations Board (NLRB), the 11^th Circuit found that an Atlanta area company using a stagehand referral service was not an employer as dictated prior by the NLRB. In overturning the NLRB decision, the Court determined that the company’s refusal to bargain with a stagehand representative was proper as the stagehands were independent contractors and not employees of the referral service.

The Court employed a variety of factors to make the determination under a common law agency test, including:

• the extent of control which, by the agreement, the master may exercise over the details of the work;
• whether or not the one employed is engaged in a distinct occupation or business;
• the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
• the skill required in the particular occupation;
• whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
• the length of time for which the person is employed;
• the method of payment, whether by the time or by the job;
• whether or not the work is a part of the regular business of the employer;
• whether or not the parties believe they are creating the relation of master and servant; and
• whether the principal is or is not a business.

The Court reviewed the actual evidence and rather than jumping to conclusions as the NLRB had done, found that in terms of control, only event producers and touring crews oversaw the means of work performed by the stagehands, and the referral company lacked the expertise to direct the stagehands in their work for any particular client.

Based upon the overwhelming errors made by the NLRB in the case, the 11^th Circuit had no difficulty vacating the decision.

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melissa.broadus@acca.org

Director of Member Communications and Committee Liaison at ACCA

Melissa Broadus is publisher of ACCA Now Magazine and its associated websites. She also serves as Director of Member Communications and Committee Liaison for ACCA. She can be contacted at melissa.broadus@acca.org or 703-824-8842.

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