“Roses and Reality: NLRB Declares Reality TV Contestants as Employees!”

On Wednesday, December 11, 2024, National Labor Relations Board General Counsel (GC) Jennifer Abruzzo filed a complaint asserting that participants of the well-known reality series Love is Blind must be categorized as employees. The complaint contests the current method of defining participants as independent contractors. Employers within the entertainment, media, and sports sectors should take heed.

The Legal Justification

The GC is navigating somewhat uncharted territory, as this represents one of the initial efforts to oversee the classification of contestants in reality television specifically, and within the television sector at large. Nevertheless, the GC’s objective is straightforward: by categorizing cast members as employees, the GC can guarantee that contestants receive protections outlined by the National Labor Relations Act, potentially paving the way for unionization.

The GC’s rationale for the complaint posits that the Love is Blind production entities have willfully and unlawfully misclassified their contestants as independent contractors instead of employees, thereby obstructing them from engaging in collective activities. This is not the inaugural instance where the worker classifications of the show have been scrutinized. A group lawsuit was initiated against the show’s production companies by a contestant who claimed, in part, that contestants were employees and received less than the minimum wage as per California law. A settlement agreement for that case is currently pending court endorsement and does not contain any admission of the contestants being employees.

In the complaint, the GC also references several clauses within contestants’ contracts that she asserts are unlawful, including:

• A noncompete clause preventing contestants from participating in interviews or making media appearances on their own or on behalf of a third party for a full year following the final episode of Love is Blind;¹ and
• A clause imposing a $50,000 penalty should a contestant wish to exit the show and the production companies find their reasoning to be “not legitimate.”²

The aforementioned noncompete and “stay-or-pay” clauses are recent focal points for GC Abruzzo. Since 1935, the Board has never deemed such employer contracts as unacceptable. This extension of the GC’s and the Board’s jurisdiction is likely to face challenges on appeal if the Board adopts the GC’s viewpoint.

Future Actions and Important Considerations

Since the GC has merely filed a complaint, a resolution on this matter may still be months away, and the change in administration may influence the outcome as well. This instance highlights another occasion of GC Abruzzo taking on the classification of independent contractors. Just last year, the Board narrowed the definition of independent contractor by reinstating a multi-factor common-law agency standard for discerning whether workers are employees or contractors. This area has consistently been a priority for GC Abruzzo, and we will keep an eye on this case to observe its effects on NLRB independent contractor classifications in the future.

This case exemplifies the recent trend of disfavor towards independent contractor classifications and efforts to expand the number of individuals who should rightfully be recognized as employees. Although the NLRB employs a different criterion than what is used under the Fair Labor Standards Act or state regulations to assess employee status,³ a decision that individuals currently classified as independent contractors are, in fact, employees could have extensive wage and hour implications under both state and federal laws. Misclassification could lead to various wage and hour claims for unpaid wages and statutory or civil penalties where relevant, such as for failure to meet minimum wage and overtime requirements, and lack of provision for meal breaks and rest periods, alongside failure to reimburse necessary business expenditures, inaccuracy in wage statements, and failure to promptly pay all owed wages.

Regardless of how this specific case concludes, employers in the entertainment sector should be aware that plaintiff attorneys are increasingly focusing on unconventional workplace environments.⁴