On July 19th, 2022, the National Labor Relations Board (NLRB) and Federal Trade Commission (FTC) partnered to protect workers against unfair labor practices and promote fair competition. The bi-agency Memorandum of Understanding (MOU) involves shared information, cross-training, and joint investigations. Among the MOU’s broader initiatives is a focus on protecting the gig economy from unfair labor practices like restrictive contract provisions. Earlier this year, NLRB General Counsel Jennifer Abruzzo questioned the legality of mandatory captive audience meetings under the National Labor Relations Act (NLRA).

Background of the Partnership

In February 2022, Abruzzo issued a memo outlining a commitment to strengthen inter-agency relationships to better identify and investigate unfair labor practices. The memo also addressed the NLRB’s previous MOUs shared with various other federal agencies. For example, an earlier MOU between the NLRB and the Occupational Safety and Health Administration (OSHA) focused on sharing information from safety inspections and assessments of workplace hazards. In brief, each partnership seeks to enhance information-sharing, investigation, enforcement, training, and outreach. Additionally, Abruzzo introduced efforts to establish a closer partnership with the FTC.

Protecting Against Unfair Labor Practices

The recent MOU to protect against unfair labor practices covers areas of mutual agencies between the NLRB and the FTC. In detail, these include:

  • various labor market developments relating to the gig economy, such as algorithmic decision-making and the misclassification of workers;
  • restrictive contract provisions, line non-compete, or non-disclosure clauses;
  • the extent and impact of labor market concentration; and
  • workers’ ability to act collectively to improve pay and working conditions.

As in previous MOUs, Abruzzo supported a holistic multi-agency focus on protecting workers against unfair labor practices through shared resources and knowledge. “This MOU is critical to advancing a whole of government approach to combating unlawful conduct that harms workers,” said Abruzzo.

History of the NLRB and FTC

Created in 1935 with the passage of the NLRA, the NLRB is an independent federal agency. Chiefly, the NLRB protects all employees’ rights under the NLRA. These include the right to organize and to determine whether to have unions represent them during collective bargaining. In doing so, it ensures employees can work together to improve their wages and working conditions.

Meanwhile, the FTC was created in 1914 along with the Federal Trade Commission Act. The goal of the FTC is to protect consumers and promote fair competition in the market. In brief, the FTC works to prevent fraud, deception, and unfair business practices. Its focus includes federal anti-trust laws and anticompetitive mergers.