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Sara Shiffman

Abstract

The National Labor Relations Act of 1935 (NLRA) is the cornerstone of employee's right to organize, collectively bargain and take collective action. As the act has been reviewed by the Supreme Court as well as the National Labor Relations Board, it has been seen as somewhat flexible, particularly when it comes to technology and how it can be used to for employee organization and communication. But as the labor market has shifted to a more technology based work-for-hire model, are those who choose to take part in new media, specifically influencer marketing technically employees entitled to the same rights and benefits of unionization? Influencer marketing is a multi-billion dollar enterprise and in 2021 SAG-AFTRA voted to expand its membership criteria to include specific influencers and content creators. If influencer contracts now include union dues and restrictions, the marketplace will undoubtedly shift with brands reevaluating marketing mixes and spend. And influencers will have to weigh the benefits of union membership with the detriments that might result from a loss of control over work product. This article will explore the impact unionization could have on new media, content creators and the brands who rely upon them for their marketing strategies. It will look back at how the NLRA has been interpreted, particularly when it comes to the definition of employees as well as the use of technology, and the benefits offered to influencers through unionization. The article will seek to answer if and how unions are changing as work evolves and how unions can continue to seek relevance and expansion in an era of new media and non-traditional work.

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