Crewmembers who produce electronic content that is displayed on a basketball arena’s four-sided video display board during professional basketball games are statutory employees, not independent contractors, under FedEx Home Delivery, ruled a divided three-member panel of the NLRB, in a 2-1 decision. In this instance, the Board noted that the employer maintained multiyear relationships with its crewmembers, enlisted them to accomplish a core part of its business, dictated when and where they worked, provided all of the key instrumentalities of their work and exerted significant control over the work and the circumstances under which it was performed. Chairman Miscimarra filed a separate dissenting opinion (Minnesota Timberwolves Basketball, LP, August 18, 2017).
The employer, Minnesota Timberwolves, operates two basketball games that play home games in the Target Arena in Minneapolis. On game days, the display board suspended above the basketball court displays live basketball game footage, replays, game statistics, advertisements, and other graphics. Crewmembers produce the content that is displayed. On February 8, 2016, a union filed a petition seeking to represent the crewmembers, contending that they were employees within the meaning of the NLRA. The employer contends that the crewmembers are independent contractors excluded from the Act’s coverage.
Roster of crewmembers. For each game, the employer fills 16 crewmember positions. The employer maintains a roster of 51 individuals with notations on which positions they were qualified to fill. Many crewmembers were qualified to work in several of the video-production classifications within the crew. Before the start of the basketball season, the employer’s broadcast production manager sends a schedule of games to the crewmembers and ask them to specify their availability for the upcoming games. The employer does not require members to be available for a minimum number of games, not does it limit the number of games crewmembers may work per season. When the number of crewmembers available to work a game exceeds the employer’s needs, the production manager determines who will work.
Once a crewmember commits to work a particular game, he does not need advance approval from the employer if he later decides not to work the game, but must find his own replacement. The employer sets the call times for crewmembers to report to the arena. It provides virtually all of the equipment crewmembers use. Historically, the employer paid crewmembers an hourly rate, but beginning with the 2015-16 season, the employer began paying crewmembers a “per game” rate, which varied according to the position. Simultaneous with the announcement of the per-game-rate compensation method, the employer began requiring crewmembers to submit monthly invoices of the games they worked.
At least half of the individuals in the petitioned-for unit have performed work for the employer in connection with the display board since October 2012. In addition to the crew members, the employer had approximately ten employees on its “in-house video department.” Some of the content that the crewmembers display is created by the in-house video department.
Employees versus independent contractors. An NLRB regional director issued a decision in which he found that the crewmembers were independent contractors and not statutory employees. Accordingly, he dismissed the petition. Thereafter, the union filed a request for review. Contrary to the regional director, the Board determined that the crewmembers were statutory employees.
In FedEx Home Delivery, the Board restated and refined its approach to determining whether individuals are employees or independent contractors. Specifically, the Board reaffirmed its reliance on common-law agency principles. In evaluating independent contractor status, all of the incidents of the relationship must be assessed and weighed. In addition, the Board considers the extent to which the putative independent contractor is, in fact, rendering services as part of an independent business with an actual entrepreneurial opportunity for gain or loss.
Although the regional director properly articulated the relevant legal framework, the Board found that under the FedEx formulation, the evidence failed to establish that the crewmembers were independent contractors rather than employees. Here the Board noted that the employer maintained multiyear relationships with its crewmembers, enlisted them to accomplish a core part of its business, dictated when and where they worked, provided all of the key instrumentalities of their work and exerted significant control over the work and the circumstances under which it was performed. Moreover, it observed that the fact that the crewmembers enjoyed neither a proprietary interest in their work, nor a voice in any important business decisions, outweighed the evidence that favored independent contractor status.
Dissent. Arguing that the regional director correctly concluded that the crewmembers were independent contractors, Chairman Miscimarra dissented. He observed that crewmembers controlled most aspects of the work they performed; the employer did not directly supervise the crewmembers during games; it was undisputed that most of the production positions required a high degree of skill; they were paid on a per game basis regardless of how long the game lasted; and crewmembers had a realistic opportunity to work for other employers. Accordingly, the dissent concluded that the evidence overwhelmingly indicated that the crewmembers were independent contractors based on the distinct skills they possessed, the fact that they were paid on a per-game basis, their freedom to take other work, and the fact that the employer did not control the details of their work or supervise them.
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