NLRB Issues Major Decision On Independent Contractors

Lancaster Symphony Orchestra, 357 NLRB No. 152 (Dec. 23, 2011), is an interesting case. I bring it to your attention because the Board extensively analyzes the distinction between independent contractor and employee, holding that the petitioned for musicians were indeed employees. As the Board explained:

In determining whether individuals areindependent contractors or statutory employees, theBoard applies the common-law agency test, which ultimatelydepends upon an assessment of “all of the incidentsof the relationship . . . with no one factor beingdecisive.” NLRB v. United Insurance Co., 390 U.S. 254,258 (1968), enfg. 154 NLRB 38 (1965); Roadway PackageSystem, Inc., 326 NLRB 842, 843, 850 (1998). Therelevant factors include (1) whether the putative employerhas the right to control the manner and means ofperformance of the job; (2) whether the individual is engagedin a distinct occupation or business; (3) whetherthe individual bears entrepreneurial risk of loss and enjoysentrepreneurial opportunity for gain; (4) whether theemployer or the individual supplies the instrumentalities,tools, and place of work; (5) the skill required in the particularoccupation; (6) whether the parties believe theyare creating an employment relationship; (7) whether thework is part of the employer’s regular business; (8)whether the employer is “in the business”; (9) themethod of payment, whether by time or by the job; and(10) the length of time the individual is employed. See,e.g., BKN, Inc., 333 NLRB at 144; Roadway PackageSystem, 326 NLRB at 849–850 fn. 32. This list of factorsis not exhaustive, and the same set of factors that wasdecisive in one case may be unpersuasive when balancedagainst a different set of opposing factors in another case.Arizona Republic, 349 NLRB 1040 (2007); RoadwayPackage System, 326 NLRB at 850. Moreover, the ultimateinquiry “requires more than simply tallying factorson each side and selecting the winner on the basis of apoint score.” Schwieger v. Farm Bureau Insurance Co.of NE, 207 F.3d 480, 487 (8th Cir. 2000) (making determinationbased on combined weight of all the factors“when considered together in light of common-lawagency principles”)

 

Mitchell H. Rubinstein