Updated February 24, 2022 at 9:44 AM ET
Hair and makeup workers at The Atlanta Opera are at the center of a labor dispute that could have widespread implications across all industries. It's over a question that's dogged workplaces for decades: who gets to be an employee and who gets to be an independent contractor?
The National Labor Relations Board signaled recently that it was going to use their case to reexamine that question. But in the meantime, the hair and makeup workers at The Atlanta Opera are stuck in limbo.
Back in spring 2020, after an initial cancellation of shows, The Atlanta Opera came back with a run of outdoor performances. It was a welcome return to almost-normalcy for hair stylist Sakeitha King – but still a little scary. This was before we knew what we know now about COVID, before the waves of variants, before vaccines.
"It was almost like playing Russian roulette," says King.
She and her fellow hair and makeup stylists wanted health insurance, so they started talking about joining a union and securing a collective bargaining agreement. They got in touch with the International Alliance of Theatrical Stage Employees (IATSE) and started the process for a union election.
Then, The Atlanta Opera stepped in to say that the hair and makeup workers were actually independent contractors and not employees, and therefore could not collectively bargain. They argued that the hair and makeup workers were hired on a show-by-show basis, were free to take on outside work of their own, and largely worked unsupervised. The Atlanta Opera declined an interview request.
The amount of control a business has over a worker is at the core of the argument about whether they can be classified as employees, says Jeff Hirsch, a professor at University of North Carolina School of Law, focusing on labor and employment law. "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. And as the control increases, the likelihood that the worker will be considered an employee also increases," he says.
But the regional NLRB sided with the hair and makeup workers, who then went ahead with the election. Then, The Atlanta Opera appealed. Now the ballots are impounded, shelved and uncounted until the NLRB mothership decides whether the workers are employees – and therefore eligible for protections offered by the National Labor Relations Act – or independent contractors, who aren't.
"It is quite common for employers that are opposing a union election to create delays in a variety of manners, because basically delay is death for unions," says Hirsch.
The debate over who gets classified as an independent contractor and who gets classified as an employee goes back ages. But in 2014, the NLRB made a ruling that determined a new standard that made it relatively easier to get classified as an employee. Then, during the Trump administration, the NLRB rolled back those criteria. Now legal experts see the pendulum swinging back to the 2014 standards under the Biden administration. And if that happens, Hirsch sees it as a signal that the Biden administration is interested in taking more concrete steps to broaden the definition of an employee.
Classification issues are widespread, particularly in the arts, says Hirsch, where productions are temporary and workers can end up working for multiple businesses. But these are issues that are present in the ever-growing gig economy. And without changes in the law, Hirsch says, these questions will likely continue to pop up.
The hair and makeup workers at The Atlanta Opera have been frustrated with what they say is a lack of communication from management, especially as they found out they were working backstage alongside people who were unionized. "Some crews were getting overtime on the weekends, and some crews were getting paid competitively in their field," says hair and make-up stylist Brie Hall. "And we weren't, as hair and makeup artists, at all."
Hall sees this as a double standard, one that particularly stings for the mostly Black hair and makeup workers as The Atlanta Opera touts its commitments to diversity and equity.
"It feels unfair and it feels prejudiced to work alongside people backstage who do have union contracts and are considered workers, but in some type of way, we're not," says Hall.
Neither King nor Hall have worked any shows at The Atlanta Opera since the union vote. And it could take months before the NLRB issues a ruling.
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