NLRB says McDonald's can be considered joint-employer

A sign directs customers to the drive-thru at a McDonald's restaurant on October 24, 2013 in Des Plaines, Illinois.

McDonald’s could be held liable for wage-and-hour violations, and for obstructing union organizing, at its thousands of franchise restaurants across the country.

The National Labor Relations Board’s general counsel has ruled that McDonald’s can be considered a "joint-employer" along with its franchise owners in labor-law complaints, because the parent company plays a significant role in employment practices for fast-food workers at the franchisee-operated stores, which constitute 90 percent of the chain’s restaurants.

If upheld in subsequent NLRB proceedings (and further legal appeals, should there be any, by McDonald’s and its franchisees), the ruling could mean McDonald’s is legally responsible when franchise owners shortchange workers or lay them off after they protest for higher wages. The theory is that McDonald’s in part determines wage levels, work rules and scheduling patterns via the contracts it sets with franchisees, as well as the labor-management software and guidance it provides to maximize store-profitability.

Complaints about worker treatment in the ongoing campaign for $15-an-hour pay at fast-food restaurants, and for union representation, have been brought by the advocacy group Fast Food Forward, which is supported by the Service Employees International Union.

There are also class-action lawsuits being pursued in three states (California, New York and Michigan) over alleged violations by McDonald’s and its franchise owners. A lawyer for the class-action plaintiffs in California, Michael Rubin at Altshuler Berzon in San Francisco, said the NLRB ruling would strengthen those cases, which are also based on ‘joint-employer’ claims.

Meanwhile, a federal court in California has held Wal-Mart to be a joint-employer of temporary warehouse workers in a class-action lawsuit based on a similar argument — that Wal-Mart controls the employment conditions in the supply chain in which subcontractors and temporary staffing agencies operate.

Christine Owens of the National Employment Law Project says the NLRB and some courts are acknowledging the increasing use of contingent and temporary workers in the corporate ecosystem that many large corporations create around them.

These recent interpretations of U.S. labor law, says Owens, may be “catching up with how the economy is changing. So many working people are no longer employed by the company that appears to be the main employer. There’s more than one employer really calling the shots.”

McDonald’s has vowed to fight the NLRB ruling, saying its franchisees set wages and working conditions. A statement from the company says the decision "goes against decades of established law regarding the franchise model in the United States."

Groups representing restaurant owners and franchisees have also blasted the decision, saying it jeopardizes the franchising system.

But former Penn State labor-law professor Ellen Dannin, author of "Taking Back the Workers’ Law," isn’t so sure.

“People seemed a little over the top” in their reactions to the NLRB general counsel’s determination, she said. “Just because the general counsel has issued a complaint doesn’t necessarily lead to the kinds of problems that they’re worried about.”

Dannin also expressed skepticism that the ruling, linking McDonald’s more directly to labor relationships and conditions at its franchises, will necessarily make union organizing against chains like McDonald’s any easier. 

About the author

Mitchell Hartman is the senior reporter for Marketplace’s Entrepreneurship Desk and also covers employment.

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