• Agricultural laborers.
• Domestic servants.
• Any individual employed by his parent or spouse.
• Independent contractors.
• Individual employees working for an employer subject to the Railway Labor Act.
• Supervisors (supervisors who have been discriminated against for refusing to violate the NLRA may be covered).
• Individuals employed by employers, such as railroads and airlines, subject to the Railway Labor Act.
• Federal, state and local government employees, including those employed at public schools, libraries and parks, Federal Reserve banks and wholly-owned government corporations.
• Individuals employed by any other person who is not an “employer” as defined in the NLRA.

On August 28, 2025, President Trump issued an executive order eliminating collective bargaining rights for federal workers at additional agencies, citing national security concerns.1 Legal challenges related to this Order remain ongoing at the time of publication.

The NLRB uses its own test to determine when workers qualify as independent contractors. The test was most recently modified in The Atlanta Opera, Inc., a June 2023 decision.2 Under the current standard, the Board looks at the following factors:

• Extent of control exercised by the employer.
• Whether the individual is engaged in a distinct occupation of business.
• Whether the work is usually done under the direction of the employer or by a specialist without supervision.
• The skill required in the particular occupation.
• Whether the employer or the individual supplies the instrumentalities, tools, and the place of work.
• The length of time for which the individual is employed.
• The method of payment, whether by time or by the job.
• Whether the work is part of the regular business of the employer.
• Whether the parties believe they are creating an independent contractor relationship; and
• Whether the principal is or is not in business.

The Board also gives consideration to entrepreneurial opportunity as part of its analysis. The Board's specific test only applies in the context of the NLRA. See Independent Contractor for a broader analysis of independent contractor analysis under California law.

California - Transportation Network Company Drivers Labor Relations Act

• Although California voters approved of Proposition 22 in November 2020 and categorized rideshare app-based drivers as independent contractors under certain conditions, on October 3, 2025, Governor Newsom signed Assembly Bill 1340 to establish the Transportation Network Company Drivers Labor Relations Act,3 which provides certain gig drivers the right to organize, bargain through representatives of their own choosing, and to engage in concerted activities to bargain or for their mutual aid and protection. This Act, which takes effect January 1, 2026, differs from the NLRA’s general exclusion of independent contractors from its coverage.

This Act defines a transportation network company (“TNC”) as an organization that provides prearranged transportation services for compensation using an online-enabled application or platform to connect passengers with drivers using a personal vehicle. On January 1, 2026, and every three months thereafter, TNCs must provide PERB with information for drivers who have completed at least 20 rides in California within the preceding six months. PERB will deem drivers who have completed the median number of drives as “active.”

Unions can trigger elections by presenting PERB with a ten percent showing of interest among active drivers, and if a majority of active drivers vote the union in, covered companies will be required to negotiate sector-wide agreements with the certified bargaining representative. Sector-wide agreements must address issues such as appealing the deactivation of a driver, paid leave, safety standards, and grievance procedures; agreements cannot reduce minimum driver guarantees or alter drivers' independent contractor status.

Managers and Supervisors

Managers and supervisors are excluded from NLRA coverage if they meet the following standards contained in the NLRA and defined by the Board.

Managerial employees are employees who have discretion in the performance of their job and have authority to formulate, determine or effectuate employer policies by expressing and making operative the decisions of the employer.4

A supervisor is any individual with authority, in the interest of the employer, to:

• Hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees;
• Responsibly direct employees;
• Adjust employee grievances; or
• Effectively recommend any of the above actions.

The authority described above cannot be “of a merely routine or clerical nature, but requires the use of independent judgment.”5

The NLRB has clarified that the phrases “exercise independent judgment,” “to responsibly direct” and “to assign” the work of others mean:

• Exercise independent judgment: The Board has held that exercise of independent judgment applies regardless of whether the judgment is exercised using professional or technical expertise if it includes exercise of supervisory functions. To “exercise independent judgment” means to make decisions not dictated or controlled by detailed instructions contained in company policies or rules, the verbal instructions of a senior manager or the provisions of the collective bargaining agreement.
• To responsibly direct: The Board has held that the person directing and performing supervisory duties must be accountable for the performance of tasks by their subordinates such that an adverse consequence may befall the supervisor if the tasks performed by the subordinate are not performed properly. The supervisor must have been delegated the authority to direct the work, to take corrective action as needed and be held accountable for the results while carrying out the interests of management.
• To assign: The Board has defined this as the active designating of an employee to a place, appointing an employee to a time or giving significant overall duties to a subordinate employee.6

For example, the Board determined that a junior sous chef at a hotel resort’s restaurant wasn’t a statutory supervisor.7 The chef did not provide direction to line cooks and others using independent judgment, nor was there evidence that the junior sous chef was held accountable for the performance of kitchen staff. Negative comments on a performance evaluation weren’t enough to establish accountability.

Keep in mind that the mere fact that a company handbook grants authority to supervise and discipline does not render a person a statutory supervisor under the NLRA if the authority is not actually exercised.8

Confidential Employees

Confidential employees are excluded from bargaining units because the employees have access to confidential business information.

The NLRB defines “confidential employees” as employees who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies with regard to labor relations, or regularly substitute for employees having such duties. Confidential employees may also include employees who regularly have access to confidential information concerning anticipated changes which may result from collective bargaining negotiations.9

Example: An employee that helps with collective bargaining matters and takes notes at management meetings where labor contract negotiation strategies are discussed would likely be considered a confidential employee.

Despite exclusion from a bargaining unit, confidential employees may still enjoy the NLRA’s other protections, including the right to engage in protected, concerted activity.10

1. Exec. Order No. 14343, 90 C.F.R. 42683 (2025)