Labor & Employment Law Daily Wrap Up, EXPERT INSIGHTS—Love may be blind, but the NLRB is not: Board argues that reality TV show contestants are employees, (Jan 6, 2025)

By Tyler Sims, John Nordlund, Ruzanna Mirzoyan, Ian C. Beck and Emily Haigh of Littler Mendelson

National Labor Relations Board General Counsel (GC) Jennifer Abruzzo issued a complaint on Wednesday, December 11, 2024, stating that contestants on the popular reality show Love is Blind are required to be classified as employees. The complaint challenges the show's current practice of classifying participants as independent contractors. Employers in the entertainment, media, and sports industries should take note.

The Legal Argument

The GC is in somewhat unfamiliar territory, as this is one of the first attempts to regulate the classification of contestants in reality television in particular, and in the general television industry as a whole. However, the GC's goal is clear: by classifying cast members as employees, the GC can ensure that contestants gain rights afforded by the National Labor Relations Act, opening the door to potential unionization.

The GC's theory behind the complaint is that the Love is Blind production companies have intentionally and unlawfully misclassified their contestants as independent contractors rather than as employees, blocking them from engaging in collective action. This is not the first time the show's worker classifications have come under fire. A class action lawsuit was brought against the show's production companies by a participant alleging, in part, that contestants were employees and paid less than minimum wage in California. A settlement agreement in that case is currently awaiting court approval, and contains no admission that the show's participants are employees.

In the complaint, the GC also points to several provisions in contestants' contracts she alleges are unlawful, including:

• A noncompete provision barring contestants from giving interviews or making news media appearances either on their behalf or on a third party's behalf for a full year after their last episode of Love is Blind airs;[1] and

• A provision assessing a $50,000 fine if a contestant wishes to leave the show and the production companies deem their reasoning not "legitimate."[2]

The foregoing noncompete and "stay-or-pay" provisions are recent targets of GC Abruzzo. Since 1935, the Board has never held such employer agreements to be impermissible. This expansion of the GC's and the Board's authority is likely to be challenged on appeal if the Board adopts the GC's position.

Next Steps and Key Considerations

As the GC has only issued a complaint, we are likely months from a resolution on this issue, and the change in administration will likely affect the outcome as well. This case marks another instance of GC Abruzzo taking on independent contractor classifications. Just last year, the Board narrowed the definition of independent contractor by reinstituting a multi-factor, common-law agency test for determining whether workers are employees or contractors. This area has long been a priority for GC Abruzzo, so we will continue to monitor this case to see what impact it may have on NLRB independent contractor classifications moving forward.

This case serves as another recent example of antipathy to independent contractor classifications and efforts to broaden the scope of individuals who should legally be considered employees. Although the NLRB utilizes a different standard than applies under the Fair Labor Standards Act or state law to evaluate employee status,[3] a finding that individuals classified as independent contractors are actually employees could have far-ranging wage and hour ramifications under state and federal law. Misclassification could give rise to various wage and hour claims for unpaid wages and statutory and civil penalties, where applicable, such as for failure to pay minimum wage and overtime, failure to provide meal periods and rest breaks, failure to reimburse necessary business expenses, failure to provide accurate wage statements, and failure to timely pay all wages due.

Even if we disregard how this particular case is resolved, employers in the entertainment industry should note that plaintiffs' attorneys are increasingly targeting non-traditional workplace settings.[4]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Tyler Sims, John Nordlund, Ruzanna Mirzoyan, Ian C. Beck and Emily Haigh

Littler Mendelson

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Footnotes

1 See Tyler Sims, Melissa McDonagh, and Michelle Devlin, NLRB General Counsel Abruzzo Targets Employee Non-Competes under NLRA, Littler ASAP (June 1, 2023).

2 See Tyler A. Sims, Kathryn Siegel, and Max A. Lamcken, NLRB General Counsel Explains What Remedies She Wants for Non-Competes She Considers Illegal and Promises Crack-Down on "Stay-or-Pay" Agreements, Littler Insight (Oct. 13, 2024).

3 The NLRB uses the common law agency test to evaluate employee versus independent contractor classification. See Jim Paretti, Fred Miner, and David Ostern, Third Try's the Charm? National Labor Relations Board (Again) Narrows Definition of "Independent Contractor" Under the National Labor Relations Act, Littler Insight (June 14, 2023). The Department of Labor Wage and Hour Division recently revised its guidance and asserted its position that independent contractor status should be determined through the economic realities test. See Alex MacDonald, Jim Paretti, Maury Baskin, and Michael Lotito, U.S. Department of Labor Finalizes Independent Contractor Regulation, Littler Insight (Jan. 9, 2024). California, for example, utilizes the "ABC test" for most workers. See Bruce Sarchet, Jim Paretti and Michael Lotito, Independent Contractor Issues in California: Summer 2020 Update, WPI Report (Sept. 1, 2020).

4 See, e.g., Don Nguyen, Emily Haigh, and Alyesha Asghar, A Case Study on the First Amendment Defense for Entertainment Industry Employers, Littler Insight (Sept. 20, 2024); Emily Haigh and Don Nguyen, #MeToo: New York State Court Allows Actor's Claims Against Entertainment Companies to Proceed Based on Alleged Conduct in 1995 by Weinstein, Littler ASAP (Sept. 4, 2024).

Attorneys: (Littler Mendelson).

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