Leadership within the NLRB wants to bring fast food franchisors to the table to answer for charges lodged against franchisees. On July 29, 2014 the General Counsel of the NLRB, Richard Griffin, announced he had issued an advice memorandum to the NLRB’s Regional Directors concerning dozens of remaining charges against McDonald’s franchisees for which the NLRB had authorized complaints to be issued. In this advice memorandum, the General Counsel takes the position that McDonald’s USA, LLC, the franchisor, should be named as an additional respondent in any complaints, reasoning it is a joint employer with each of the various franchisees, already named.
While the memorandum has not been made public and is not considered law, it certainly reveals the direction and strategy of the NLRB. The agency purports to stretch the concept of joint employer in a manner that could have far-reaching implications beyond fast food, and perhaps also beyond the franchisor/franchisee model. As unions seek to organize new industries, including the franchise restaurant industry, this new directive at the NLRB makes clear the stakes are being raised. Battles will now begin in earnest over how many and what sorts of entities will be joined into charges, complaints and possible bargaining obligations. The fight over joint employer status will involve analysis and rulings about who has control over what employees and how much. The legal battles are just beginning on this front, and other industries should beware.