NLRB and FTC Form Partnership to Crack Down on Worker Misclassification and 'Gig Economy'
59 million Americans participate in the 'gig economy' and unions want a piece of the action.
On Tuesday, the National Labor Relations Board issued a press release stating that NLRB General Counsel Jennifer A. Abruzzo and Federal Trade Commission (FTC) Chair Lina M. Khan executed a Memorandum of Understanding (MOU) forming a partnership between the two agencies that will “promote fair competition and advance workers’ rights.”
“The agreement enables the NLRB and FTC to closely collaborate by sharing information, conducting cross-training for staff at each agency,” the NLRB stated, “and partnering on investigative efforts within each agency’s authority.”
The NLRB-FTC partnership appears to be a different approach to helping unions and their allies unionize independent contractors, or “gig workers” (as they’re sometimes called).
The MOU identifies areas of mutual interest for the two agencies, according to the NLRB’s release, “including: labor market developments relating to the “gig economy” such as misclassification of workers and algorithmic decision-making; the imposition of one-sided and restrictive contract provisions, such as noncompete and nondisclosure provisions; the extent and impact of labor market concentration; and the ability of workers to act collectively.” [Emphasis added.]
“Workers in this country have the right under federal law to act collectively to improve their working conditions. When businesses interfere with those rights, either through unfair labor practices, or anti-competitive conduct, it hurts our entire nation,” stated NLRB General Counsel Jennifer A. Abruzzo. “This MOU is critical to advancing a whole of government approach to combating unlawful conduct that harms workers.” [Emphasis added.]
With the gig economy now at an estimated 59 million workers in the U.S.—and growing in popularity among incoming Gen Z workers—as well as union membership in the private sector at an all-time low at the start of 2022, unions and their allies have been trying to figure out way in which to capture more independent contractors into unions’ ranks.
As independent contractors are not considered “employees” under the National Labor Relations Act and cannot be unionized, unions and their allies have tried to rectify this legislatively at the federal level with the now-stalled Protecting the Right to Organize Act, as well as at the state level.
In California, for example, union-activist-turned-politician Lorena Gonzales authored the now-infamous Assembly Bill 5 (or AB5) which, in 2020, codified something called the ‘ABC Test’ into state law.
Most recently, AB5—which has caused many ‘gig workers’ to lose their livelihoods over the last two years—was the cause of hundreds of independent truck drivers to protest at the Port of Oakland (with the ILWU refusing to cross the truckers’ picket line).
Last month, the U.S. Supreme Court denied hearing California Trucking Association’s case against California’s AB5.
Since California passed AB5, several other states have considered similar legislation.
Now, with the NLRB and FTC forming a partnership to help unions and their allies unionize gig workers, another front in the war against the gig economy has been opened.
