For an Initial Consultation, call (917) 371-8000

Steven Mitchell
Sack

The Employee’s Lawyer®

Welcome to The Law Offices of Steven Mitchell Sack

Enforcing the workplace rights of thousands of employees, executives and sales reps for more than 44 years.

steven mitchell sack

New NLRB Ruling Affects Who May Be Considered an “Independent Contractor”

In a recent decision, the National Labor Relations Board (NLRB) has changed how determinations will be made to determine whether a worker is an independent contractor or not. In previous decisions, the NLRB has said that it would prioritize the entrepreneurial opportunities of a worker to determine whether they qualify as an independent contractor. In this decision, however, they have said they will look to a wide variety of factors to determine if someone qualifies for that classification.

What Was This Case?

In The Atlanta Opera, Inc., 372 NLRB No. 95 (2023), a collection of workers represented by Make-up Artists and Hair Stylists Union, Local 798, IATSE, sued an opera company alleging they were improperly classified as independent contractors. The opera company employed them as independent contractors rather than employees, unlike many of the other workers at the company. As a result, they were not given employment protections given to other workers at the opera company.

What is the Issue At Hand?

The primary legal issue is whether or not these workers should be considered independent contractors under the law. Independent contractors are not afforded many of the legal protections that employees do, such as protection against discrimination, and they are personally responsible for their Social Security taxes rather than having them withheld from their paychecks (with half paid by their employer). The employer contended they were independent contractors due to them having entrepreneurial opportunities outside of the company, which is the most recent standard under SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019). The workers instead stated they should be held to the older FedEx II standard from FedEx Home Delivery, 361 NLRB 610 (2014), which required looking at a broader set of factors.

What Did the NLRB Decide?

The NLRB ruled that the workers are employees and not independent contractors, reinstating the FedEx II standard. Under that standard, employers are required to look at a broader set of criteria, including:

  • The amount of control an employer exercises over an employee
  • If an employee is operating in a profession distinct from their employer or business
  • If they typically operate alone or with supervision
  • If they provide a part of the employer’s regular business
  • If the occupation requires a significant level of skill
  • If the employer or worker provides tools, materials and the place of work
  • How long the worker has worked for their employer
  • How the employee is paid
  • If the employer and worker believe they are involved in an independent contractor relationship
  • If the worker owns their own business

Depending on how these factors work in their totality, a worker may be considered an employee under certain circumstances. As a general rule, the more dependent a worker is on an employer and the less control they have over their work, the more likely they are to be considered an employee rather than an independent contractor.

How Could This Affect You?

If you are a worker, this is probably a good sign for you, since it makes it more likely you will be considered an employee instead of an independent contractor. This means it will be easier to obtain worker protections and avoid undue taxation and costs. However, to determine what might be best for your situation, you should speak to a lawyer with experience handling employment law issues.

Steven Mitchell Sack, the Employee’s Lawyer, is a New York employment lawyer with more than 42 years’ experience handling the many aspects of employment law. His new book, “Fired!: Protect Your Rights & FIGHT BACK If You’re Terminated, Laid Off, Downsized, Restructured, Forced to Resign or Quit,” is available in hardback, and contains valuable advice on dealing with employment and labor law issues. To purchase the book, feel free to contact Steven Sack at 917-371-8000 or visit the website at legalstratpub.com. To inquire about a legal matter, please feel free to contact attorney Steven Sack at 917-371-8000 or stevensackatty@hotmail.com.

    If you have experienced any of the below, fill out the form to the right to set up your FREE PHONE CONSULTATION:























    What’s Happening at The Law Offices of Steven Mitchell Sack

    new york lawyer
    new york lawyer awards
    new york lawyer blog

    Our Reviews and Client Feedback

    I dealt with steven as an adversary. I found him to be one of the most respectful,, knowledgeable, and effective attorneys i have encountered in my 40 years of practicing law.
    Steven isn't just a great lawyer, he is a great person. He was always available to take my calls, and to give good advice. I would highly recommend him.
    "I am an attorney, and I can say that Mr sack did an outstanding job in negotiating a severance agreement. He picked up the phone and made a call, something simple, timely and effective that no other attorney would do. Mr. Sack was effective, to the point, he always followed up, and he got me a better result than any other attorney would have.

    He exceeded expectations, and I am very grateful that I hired him.

    I would recommend him to any employee involved in a sensitive situation where diplomatic negotiation and communication is needed. He kept me very well informed about the progress of my case and obtained a very satisfactory negotiated formal written severance agreement, which is one of his specialties."
    Response from the owner:Thank you very much for your review. Please keep us in mind if you ever have any other employment law matters you need assistance with.
    The best contract lawyer out there. Responsive compassionate and got results results fast. Unbelievable contract lawyer best in NYC.
    Response from the owner:Thanks for your review. Please feel free to call back if you ever have any need of representation in any future employment law matters.
    I had the pleasure of working with Steven on my separation agreement, and I couldn’t be more grateful for his expertise and dedication. From the very beginning, he provided clear, strategic guidance, ensuring that my rights were fully protected. He took the time to answer all my questions, kept me informed at every step, and negotiated effectively on my behalf. His attention to detail and deep understanding of employment law helped me secure an exceptional outcome. I highly recommend Steven!
    Response from the owner:Thank you for your review. We are glad you were satisfied with your representation, and hope you contact us if you ever have need of representation again.
    I had a great experience working with Steven Sack recently relating to a recent job separation from my former employer. He is straight to the point, very knowledgeable, and easy to work with. I absolutely recommend his services to anyone that needs an employment attorney.
    Response from the owner:Thanks for your review. If you ever need any future counsel on employment law matters, please feel free to contact us again.
    js_loader

    Testimonials

    Read More

    Skip to content