A new policy statement from the Federal Trade Commission (FTC) encourages organizing of independent contractors into labor unions, just like employees, and would include research subjects who receive any form of incentive for participating in market research studies.
The FTC’s move follows in the same vein as the PRO Act, legislation in Congress that passed a Senate committee in 2023 that would add an ABC test to the National Labor Relations Act (NLRA) to determine if someone is an independent contractor or employee, including research subjects, and thus subject to union organizing.
“Federal Trade Commission Enforcement Policy Statement on Exemption of Protected Labor Activity by Workers from Antitrust Liability,” issued in the last couple of days of Biden appointee Lina Khan (D) as chair of the FTC, was approved by a 3-2 vote of the commission. Republican commissioners Andrew Ferguson and Melissa Holyoak voted no.
The policy statement says that the “Clayton and Norris-LaGuardia Acts” are “the labor exemption to the antitrust laws, and they shield from antitrust liability the conduct of bona fide labor organizations engaged in labor disputes—i.e., organizing and bargaining over the terms and conditions of employment.”
The January 17, 2025 statement notes that, while it has been “long been clear” that "employees who are directly hired by an employer are protected from antitrust liability by the labor exemption when they are organizing or bargaining with that employer over their compensation and/or working conditions … the rise of independent contracting… has presented questions about the labor exemption’s application to the organizing and bargaining of workers who are classified—or potentially misclassified—by a firm as independent contractors.”
The FTC policy statement insists that independent contractors can unionize just like employees: “the labor exemption’s application does not turn on whether a worker is formally classified by a firm as an independent contractor under the Fair Labor Standards Act (“FLSA”), the National Labor Relations Act (“NLRA”), tax law, state common law, or any other law. Rather, workers’ organizing and collective bargaining activity may be protected from antitrust liability when what is at issue is the compensation for their labor or their working conditions. Workers engaged in such protected activity are not categorically beyond the scope of the labor exemption from antitrust liability simply because they do not have a formal employer-employee relationship with the firm with whom they seek to negotiate over the compensation for their labor or their working conditions.”
The FTC concluded that, “workers who provide labor services are not subject to antitrust liability when engaging in protected collective action—such as seeking better compensation and job conditions—even if the firm whose labor practices the workers seek to improve classifies (or misclassifies) them as independent contractors”
While the FTC’s policy statement is laced with caveats that could limit its effectiveness, it is clearly intended to encourage unionization activities aimed at independent contractors. Since that includes any research subject receiving incentives for participation in insights studies, the Insights Association opposes this policy and will urge the new FTC chair, Andrew Ferguson, to rescind it.

Based in Washington, DC, Howard is the Insights Association's lobbyist for the marketing research and data analytics industry, focusing primarily on consumer privacy and data security, the Telephone Consumer Protection Act (TCPA), tort reform, and the funding and integrity of the decennial Census and the American Community Survey (ACS).
Howard has more than two decades of public policy experience. Before the Insights Association, he worked in Congress as senior legislative staffer for then-Representatives Christopher Cox (CA-48) and Cliff Stearns (FL-06). He also served more than four years with a science policy think tank, working to improve the understanding of scientific and social research and methodology among journalists and policymakers.
Howard is also co-director of The Census Project, a 900+ member coalition in support of a fair and accurate Census and ACS.
He has also served previously on the Board of Directors for the National Institute for Lobbying and Ethics and and the Association of Government Relations Professionals.
Howard has an MA International Relations from the University of Essex in England and a BA Honors Political Studies from Trent University in Canada, and has obtained the Certified Association Executive (CAE), Professional Lobbying Certificate (PLC) and the Public Policy Certificate (PPC).
When not running advocacy for the Insights Association, Howard enjoys hockey, NFL football, sci-fi and horror movies, playing with his dog, and spending time with family and friends.