Why WWE's New "Progressive Discipline Policy" Makes The Case For Talent To Be Employees

Labor lawyer Lucas Middlebrook was on today's episode of The Wrestling Inc. Daily. Middlebrook has represented many different labor groups from airline workers to professional soccer referees and even former UFC fighter Leslie Smith, who was also on the podcast to tell her story of trying to organize pro fighters. Wrestling Inc. Managing Editor Nick Hausman asked Middlebrook about his reaction to WWE's new third party policies that Wrestling Inc. exclusively reported on.

"I have been following it as the news comes out, and I followed along about the third party platforms and the streaming. And I saw a your article related to some sort of discipline process where wrestlers may get suspended or fined, but it looked like a progressive discipline process in relation to also third party platforms," Middlebrook explained. "What I can say is that the more control that, let's just call them an employer, the more control that an employer or an entity exercises over its independent contractors, the less likely it is that they are actually independent contractors.

"And what's important to remember is that labels don't control the analysis. Under the NLRB's current case law and their rules, they employ a 10 or sometimes 11 factor test to determine whether somebody is actually an independent contractor or whether they are what they call a 'statutory employee.' It's interesting to me because the more control you say, 'you're not allowed to go out on these third party platforms and earn additional money outside of what you're earning here,' well that sounds an awful lot like an employee because the true meaning of an independent contractor is that you can serve one individual and then you can go and make your money at another place as well. In fact, there's this concept in the factor test about entrepreneurship availability, and so that would factor in as well."

Middlebrook noted that WWE's violations for breaking the new policy has the makings of a "progressive discipline policy." In this situation, WWE's violations would start with a warning, then a fine, and finally suspension, which follows a progressive discipline as this is encourages talent to "correct your behavior."

"I kind of smirked when I read this article recently about the fines and the suspensions because it just smacked to me of a progressive discipline policy, which is almost a benchmark of any union contract," Middlebrook pointed out. "Not that you would put the progressive disciplinary steps in the contract but most union contracts, outside of the sports world, have what's referred to as a 'just cause' provision and what that means is that you cannot be fired or disciplined without just cause.

"Now that term is a loaded term. It's been analyzed over years of arbitration precedent and labor law, but one of the factors of just cause and whether or not the employee can be disciplined is a progressive discipline policy because progressive discipline is intended to rehabilitate an employee as opposed to strictly punish them, to say what you did was wrong. You need to correct your behavior or else your next punishment could be worse. Ultimately leading at the end of a progressive system, discharge.

"And so it's interesting because when we were prosecuting Leslie's case at the regional level, one of the pieces of evidence was the conduct policy that the UFC had implemented in 2018, and that policy had some hints of progressive discipline as well. And so that is an important factor when you're looking at whether somebody is an employee or an independent contractor. So again, the more that the WWE and Vince McMahon exercise this control over the work life, the more likely it is that a finding would be made if it ever reached that level, the wrestlers are actually employees and not independent contractors. They're just currently misclassified and probably 1099'd as an independent contractor as well."

There are many paths towards unionization, and a labor union president did reach out to Thea Trinidad fka Zelina Vega. However, there has not been any public action thus far, and Hausman asked Middlebrook what he thinks should be happening.

"It really all depends on what the temperature is of the group that would be seeking to organize," Middlebrook admitted. "Is the group unhappy with their current situation? Are they unhappy with the amount of control that the WWE exercises, despite the fact that they've signed contracts, I would assume, that say they're independent contractors.

"Any successful organizing drive usually kicks off with a level of unhappiness, and the ones that kind of seemed to go very quickly, they have one linchpin item that all of a sudden has galvanized the group and makes them want to organize, but the process of organizing itself is relatively simple. You could collect cards, obviously, with what are called authorization cards, and they're just one page, small cards that have a little bit of identifying information, date, a signature. And then once you get 30%, at least 30%, of the roster to sign those cards, then you can submit the cards to the NLRB, and if NLRB goes through the process and verifies that, in fact, they are authentic and the signatures match and everything, then you could proceed to an election to determine whether the entity that submitted the cards is going to be your collective bargaining representative.

"You can do that from the ground up. You can do that as a grassroots effort where the wrestlers could literally make something, let's say the 'Wrestlers Employment Association' or make up their own name, put it on the union cards and create a union from the ground up. For instance, that's what the professional soccer referees did back in 2012-2013, the Professional Soccer Referees Association."

As discussed with Smith in her Wrestling Inc. Daily podcast appearance, there is a discreet way for talent to organize. Middlebrook explained the numerous methods that can be done to make the process discreet to avoid retaliation.

"One of the important aspects of the National Labor Relations Act is that the union authorization cards are confidential, and in fact, the employer never sees who signed a card and who did not sign a card," Middlebrook explained. "They are submitted to the NLRB if it goes to that portion, and the NLRB will request, essentially, signature samples and a list of the potential bargaining unit from the employer then they'll compare the two, but the employer never sees the cards or who signed and who did not sign the cards.

"And so what is important if you're doing a grassroots organizing effort is to ensure that confidentiality is protected in a manner where people don't have to fear that the employers going to find out who did and who did not sign a card, and even if you go, and I know I'm kind of going deep into the intricacies here, but there's a concept called voluntary recognition where if you collect enough of the cards, let's call it a majority of the group, so if you have just an overwhelming response to your organizing drive, then you can reach out to the company prior to filing with the NLRB.

"And you can say, 'We would like you to voluntarily recognize us. These cards demonstrate we have more than a majority support.' Even in that situation, typically what happens is the parties agree to send the cards to a third party like the American Arbitration Association, and then that third party verifies that the cards are accurate and potentially cross-referencing with signature samples. And if they verify they're accurate and the company or the employer has agreed to this voluntary recognition process, then you don't even have to go to a union election. Once the cards are verified as accurate, if you have a majority, then you'll enter into what's called a voluntary recognition agreement, and then you can actually be the certified or the authorized bargaining representative through that route as well. Even in that route, even in that path, the employer doesn't see who signed cards and who did not."

Many fans have wondered what this 30% pool would look like and if AEW or Performance Center talent would be involved. Middlebrook admitted that he does not have a definitive answer to that question, but he did note that the NLRB does have ways to settle that dispute.

"Listen, I'll apologize in advance. I don't have a direct answer for you because some research and investigation would have to be done on what is the appropriate bargaining unit," Middlebrook said. "That could be a look at if there are these subunits or if, really, they're all just one collective unit. And so there would need to be some research undertaken on the front end to determine what the appropriate unit is before you either saw a voluntary recognition or even proceeded to the NLRB, and sometimes the NLRB even makes what's called unit determinations if that becomes a contested issue."

You can follow Lucas on Twitter @lkmiddleb. You can find the full audio and video from Lucas' interview embedded below.