I suspect most of you have been following, to some extent, the fast-food worker protests of the past couple of years. As recently as Dec. 4, fast-food workers from around the country demonstrated in front of their restaurants, continuing their fight for a $15-an-hour wage.
Well, the latest update in the story came on Friday, when the National Labor Relations Board issued complaints against McDonald’s franchisees and their franchisor, McDonald’s USA, as joint employers, alleging that they violated the rights of employees participating in the protests by making threats and retaliating against them.
Kendall Fells, organizing director of the Fight for 15, a group formed to advance the cause of a $15 living wage, told the Chicago Tribune (registration required) that “McDonald’s exerts such extensive control over its franchised business operations that, for all intents and purposes, McDonald’s is the boss. It’s obvious that the company should share responsibility with franchisees for the treatment of its workers.”
The NLRB’s General Counsel, Richard Griffin, issued 78 charges against McDonald’s and its franchisees. In response to the NLRB announcement, McDonald’s issued the following statement …
“McDonald’s is disappointed with the Board’s decision to overreach and move forward with these charges, and will contest the joint employer allegation as well as the unfair labor practice charges in the proper forums. These allegations are driven in large part by a two-year, union-financed campaign that has targeted the McDonald’s brand and impacted McDonald’s restaurants. McDonald’s has taken the appropriate measures, working properly with its independent franchisees, to defend itself against that attack on its business. McDonald’s serves its 2,500 independent franchisees’ interests by protecting and promoting the McDonald’s brand and by providing access to resources related to food quality, customer service and restaurant management, among other things. These optional resources help entrepreneurs operate successful businesses. This relationship does not establish a joint-employer relationship under the law—and decades of case law support that principle.”
On Friday afternoon, I asked Marshall Babson — counsel in the New York and Washington offices of Seyfarth Shaw, who served as a member of the NLRB from 1985 to 1989 — for his take on the board’s move. “I can’t imagine what evidence the general counsel at NLRB has to justify the issuance of the complaints, but for more than 50 years, the general view has been that you can’t be a joint employer unless you’re an employer,” he said.
“My understanding is that if you’re McDonald’s and most [other] franchisors, you don’t become engaged in the hiring and firing of these employees,” he went on. “You don’t set their wages, benefits, and terms and conditions of employment on a day-to-day basis. You don’t say that [someone] should be terminated for this or that. … So [the NLRB complaints] represent an extraordinary departure from the past.”
In the 40 years he’s been doing employment law, Babson said he doesn’t recall a single instance when an otherwise legitimate relationship has been challenged in this manner. Babson said his advice to employers continues to be the same: If you’re a franchisor, keep focusing on brand integrity: What kind of uniforms people should wear and the way products should be prepared; and don’t act in the capacity of an employer.
“If it takes the Supreme Court or Congress to once again remind the board that the common-law definition of employer applies here, then [so be it],” he said. “But, in the meantime, it’s unfortunate that this has the potential to disrupt long-term traditional business relationships.”Twitter It!