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The National Labor Relations Board is signaling it may be open to revisiting the difference between an employee and an independent contractor. As NPR's Andrew Limbong reports, a decision could affect all kinds of businesses and professions.
UNIDENTIFIED SINGER: (Vocalizing).
ANDREW LIMBONG, BYLINE: The Atlanta Opera was in the middle of a run of the classic opera "Porgy And Bess" when everything shut down in March 2020. Then, when shows picked back up again soon after, Sakeitha King, a hairstylist, was pumped. But it was scary. Yeah, they were outdoors, but this was spring 2020 - pre-knowing what we know about COVID now, pre-omicron, pre-vaccines.
SAKEITHA KING: It was almost like playing Russian roulette. You didn't know how severe your symptoms were going to be, if you were going to get it, and if you did, what that would look like for your family.
LIMBONG: And that's when King and her hair and makeup coworkers really started to talk about things like joining a union and getting a collective bargaining agreement.
KING: The reason we talked about unionizing is because we wanted to be able to have access to having health care.
LIMBONG: Brie Hall, a makeup and hairstylist, started asking around and found out that other backstage artists were unionized and had contracts with the Atlanta Opera.
BRIE HALL: Some crews were getting overtime on the weekends, and some crews were getting paid competitively in their field. And we weren't, as hair and makeup artists, at all. And it's like, something has to change.
LIMBONG: So they got in touch with the International Alliance of Theatrical Stage Employees, or IATSE, and, in spring 2021, started the process for a vote to unionize. But the Atlanta Opera argued to the National Labor Relations Board that the hair and makeup workers were actually independent contractors and not employees and therefore not eligible to be covered under a collective bargaining agreement. Their reasoning was that the hair and makeup stylists were hired one show at a time, and they were free to take on outside work of their own. The regional NLRB branch sided with the hair and makeup workers, and they held an election. But then the Atlanta Opera appealed. So now the ballots are impounded - shelved and uncounted until the NLRB mothership makes a call.
JEFF HIRSCH: It is quite common for employers that are opposing a union election to try to create delay in a variety of manners because, basically, a delay is death for unions.
LIMBONG: That's Jeff Hirsch, professor at the University of North Carolina School of Law, who focuses on labor and employment issues. He says the debate over what makes an employee versus an independent contractor goes back ages.
HIRSCH: Traditionally, the sort of overriding concern is whether or not the business has control over the manner and means in which the worker does the work. As the control increases, the likelihood that the worker will be considered an employee also increases.
LIMBONG: In 2014, the NLRB set a criteria that made it relatively easier to be classified as an employee. That criteria tightened under President Trump. Now in the Biden administration, Hirsch and other legal experts see the pendulum swinging back the other way. It could have ramifications, not just in other operas and theaters across the country that run on contract work, but all across our gig work economy. The Atlanta Opera declined an interview, citing the fact that the matter was still pending. But for hair and makeup workers like King and Hall, the broader debate doesn't change the fact that they haven't been hired to work on any shows since all of this went down, or that a company that claims to care about things like diversity and equity is treating the mostly Black hair and makeup crew this way. Here's Brie Hall again.
HALL: It feels unfair and it feels prejudiced to work alongside people who do have union contracts and are considered workers, but some type of way, we're not considered workers.
LIMBONG: And it could take months for that consideration to change.
Andrew Limbong, NPR News. Transcript provided by NPR, Copyright NPR.
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