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Abstract

Reality television cast members are poorly compensated, working under tremendously restrictive and controlling contracts. While actors and writers who are members of the Screen Actors Guild of America and the Screen Writers Guild of America have collectively bargained with studios for better wages, terms, and conditions of employment, contestants on reality television series have gone it alone – auditioning for a series and having no choice other than to accept the contract provided by the studios. In December 2024, at the end of the Biden administration, the National Labor Relations Board (NLRB) filed a complaint on behalf of the reality television participants on the Netflix hit Love Is Blind. For the first time in American history, the NLRB took the position that reality television contestants on a dating show constituted “employees.” This Article takes the position that the drag queen cast members of RuPaul’s Drag Race (RPDR), one of the most popular competition reality television series in American history, are also “employees” under the National Labor Relations Act (NLRA). The NLRA applies only to “employees” of private, nonreligious employers. Throughout American labor history, courts and the National Labor Relations Board (NLRB) have considered whether American workers across myriad industries constitute “employees” entitled to labor rights under the NLRA or “independent contractors” explicitly excluded from the NLRA’s coverage.

Part II of this Article explains how RPDR operates—as a television show and as a workplace, examining a formerly leaked, alleged contract from Season 8 of RPDR. Most of the leaked contract will be discussed in Part IV. Part III of this Article addresses the NLRB’s various interpretations of “employee” under the NLRA, a threshold question that the drag queen cast members of RPDR must address should they choose to seek the protections of a labor union and the Act. While it is unclear how the second Trump administration’s NLRB appointees will handle questions of who is an “employee” and who is an “independent contractor” under the NLRA, this Article assumes that the administration will adopt a similar approach to the Board during Trump’s first term, prioritizing “entrepreneurial opportunity” in its application of the master-servant test under agency law. Specifically, this Article relies on the facts and legal findings of the Trump Board’s SuperShuttle and Centerfold Club decisions. In Part IV, this Article outlines the relevant facts of SuperShuttle and Centerfold, then addresses each of the ten agency factors applied in such cases, first outlining the relevant law, incorporating previous NLRB decisions evaluating the claims of workers in the arts. Each factor is applied to RPDR.

Even under SuperShuttle’s conservative approach, the cast members of RPDR are “employees” entitling them to a vote for union representation. This Article will address the strengths and weaknesses of the drag queen cast members’ potential claims. Part V of this Article proposes a new test to examine questions of “employee” status for casts of reality television by reconfiguring existing law into a more appropriate test. Ultimately, I hope that this Article serves as a starting point for the queens associated with RPDR, and other similarly situated reality television personalities on unscripted competition series, to begin the process of collectively bargaining. No Hollywood studio, no matter how entertaining or representatively important its series is, should profit off the culture, images, personalities, art, and work of the barely paid talent necessary to even make a show.

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