In a controversial decision that has been hinted at since July, the National Labor Relations Board issued a number of complaints alleging unfair labor practices against McDonald's franchisees, naming the fast food corporation as a “joint employer.”
The NLRB has been hinting that it seeks to broaden its test for “joint employer status” for nearly a year, most notably when it sought interested amici to file briefs addressing the issue raised in a separate case, Browning-Ferris Industries of California, Inc., et al., v. Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters (“BFI”). The existing joint employer test was articulated in two 1984 NLRB decisions and focuses on whether the alleged joint employers share the ability to control or co-determine the essential terms and conditions of employment. Essential terms and conditions of employment include hiring, firing, discipline, supervision, and direction of employees. In the BFI case, the NLRB general counsel argued that this test undermined meaningful collective bargaining and should be replaced by a broader “totality of the circumstances” test which focuses on whether employers wield enough influence over the entity’s employees’ working conditions, and whether meaningful bargaining could not happen without their presence.
While the NLRB has not yet issued any decision in the BFI case, their decision to name McDonald’s USA LLC as a joint employer in these complaints demonstrates that they may have already begun to evaluate such cases under this looser standard. The underlying allegations in the complaints involving McDonald’s franchised restaurant employees, in which franchisees are accused of suppressing employee organizing activity in an SEIU backed fast food workers campaign, did not actively involve McDonald’s corporate office.