NLRB General Counsel Seeks to Change Joint Employer Standard

Last week, the National Labor Relations Board General Counsel Richard F. Griffin, Jr. suggested that McDonald’s Corp. franchisees should be considered a joint employer, potentially changing decades of Board precedent.

The issue arose as part of an authorization of complaints against 43 separate McDonald’s franchises for violations of the National Labor Relations Act. In a unique and troubling twist, the National Labor Relations Board chose to issue a complaint against McDonald’s itself, as well.  McDonald’s, however, does not own the franchises at issue or employ any of the workers included in the complaint. If upheld, the General Counsel’s interpretation of the joint employer standard could substantially change the landscape for union organizing of franchises.

Currently, two or more businesses that are separate are only considered joint employers if they “share or co-determine those matters governing the essential terms and conditions of employment” for their employees. Under the General Counsel’s proposal, separate businesses would be considered joint employers if “the putative joint employer wields sufficient influence over the working conditions of the other entity’s employees such that meaningful bargaining could not occur in its absence.”

Labor groups argue that McDonald’s establishes standards for its franchises in a wide variety of areas, including menu, uniforms, and décor. As such, they would be considered a joint employer under the General Counsel’s proposed standard. MSEC will keep members updated as this matter progresses through the NLRB’s adjudication system.