NLRB And FTC Enter Into Memorandum Of Understanding Focusing On IC’s In The Gig Economy, But Not Likely To Be Consequential

The National Labor Relations Board and Federal Trade Commission have entered into a Memorandum of Understanding on July 19, 2022 that is intended to “better root out practices that harm workers on the ‘gig economy’ and other labor markets, to enhance the enforcement of federal laws and regulations administered by the agencies, and to promote inter-agency collaboration through information sharing, cross-agency training and coordinated outreach.” The MOU provided that the NLRB and FTC “recognize that continued and enhanced coordination and cooperation concerning common regulatory interest will help protect workers against unfair methods of competition, unfair or deceptive acts or practices, and unfair labor practices.” Common areas of regulatory interest include labor market developments relating to the gig economy, claims and disclosures about earnings and costs associated with gig and other work, and the classification and treatment of workers. 

In a news release issued by the NLRB on July 19, NLRB General Counsel Jennifer A. Abruzzo said: “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. This MOU is critical to advancing a whole of government approach to combating unlawful conduct that harms workers.” There have been a large number of articles and commentaries about this MOU, with most suggesting that the FTC will refer cases to the NLRB. However, the NLRB’s Office of General Counsel does not have any investigative authority and can only act in response to unfair labor practice charges or union election petitions filed with the NLRB, not with referrals from other agencies like the FTC. Further, past MOUs between agencies such as the U.S. Labor Department, state labor commissioners, the IRS, the NLRB, and other governmental agencies have produced little in the way of concrete results made known to the public.