Earlier this month, the General Counsel of the National Labor Relations Board (NLRB) issued a consolidated complaint charging the producers of the popular Netflix show “Love is Blind” with unfair labor practices for their treatment of contestants in this popular reality TV show. The idea that contestants on a reality television show are “employees” of the show’s producers is a novel theory that has never been addressed by the NLRB. If the theory holds up, reality show contestants could be granted “employee” status under the National Labor Relations Act (NLRA), providing the contestants the right to unionize, along with a host of other legal protections, which could fundamentally impact the business model of reality television.
Netflix describes “Love Is Blind” as a “social experiment where single men and women look for love and get engaged, all before meeting in person.” Participants date each other in “pods,” or small rooms where they can talk but not see one another. A couple meets face-to-face only after a marriage proposal is accepted. The show then follows engaged couples for another few weeks as they continue their relationships in person and ultimately tie the knot (or not).
Along with its growing popularity among the viewing audience, “Love Is Blind” has also been the subject of growing controversy in recent years, as a number of former contestants have claimed they were mistreated by the show’s producers. Some former contestants have publicly alleged they were deprived of food and sleep, and that producers preyed on their anxieties and prevented them from quitting the show.
According to the General Counsel’s complaint, in order to participate in the show, contestants are required to sign “Participant Agreements.” The agreements prevent participants from, among other things, speaking publicly about their experiences on the show. For example, the agreements require contestants not to have any contact with the media whatsoever related to the show without advance permission from the show’s producers. They also bar participants from making “any derogatory comments or statements of any kind in any media” regarding the show, the producers, and the network.
The agreements also threaten financial penalties against participants who decide to leave the show early. Under the agreements, participants who withdraw from the show, or are involuntarily removed due to their own breach of contract, forfeit their stipend and may have to reimburse the producers for certain expenses. In addition, the agreements allegedly prevent participants from taking certain employment opportunities outside of the show for a period of time.
The General Counsel’s complaint was issued by the NLRB’s Region 18 (Minneapolis) on December 11, 2024. According to the complaint, the above-described contractual provisions (and others) unlawfully violate the rights of the contestants – as employees – to engage in “protected concerted activity” under Section 7 of the NLRA. Such activity includes efforts by employees to improve their terms and conditions of employment, including forming a union. The complaint alleges the Participant Agreements are being used to threaten contestants who speak out with legal action, thereby preventing them from improving their working conditions.
A trial before an Administrative Law Judge is scheduled for April 2025. If the complaint does proceed to trial – a major question given that the new administration could replace the General Counsel with someone more employer-friendly – a threshold question will be whether the contestants fit the definition of “employees” under the NLRA. The rights afforded by the NLRA only apply to “employees” under the NLRA; independent contractors are not covered by the NLRA. According to one federal court, “Determining whether a worker is an employee or independent contractor for purposes of the NLRA is more art than science.” Penn. Interscholastic Athletic Ass'n, Inc. v. NLRB, 926 F.3d 837, 839–40 (D.C. Cir. 2019). Many factors are taken into consideration, generally focusing on the degree of the alleged employer’s control over the worker’s activities.
The answer to this question could have dramatic implications for the reality television industry. A ruling that reality show contestants are “employees” under the NLRA would likely bring SAG-AFTRA (the union that represents TV show actors) into the picture, asserting the right to bargain over terms and conditions on behalf of the contestants, which in turn would impact the finances of these productions. It could also have a broader impact for any business that relies on independent contractors.
If you have any questions about your company’s labor practices, please contact the authors or your regular Saul Ewing attorneys.
