A Supersized Announcement by the NLRB

October 27, 2014 Published Work
Connecticut Law Tribune, Vol. 40, No. 43

Franchisors be warned: the National Labor Relations Board is poised to expand its long-established joint employer standard, a change that would make it easier for unions to successfully argue that a joint employer relationship exists between a franchisee and franchisor, or between a staffing agency and the companies for which it provides employees.

On May 12, the NLRB expressed its willingness to revisit the joint employer standard by requesting briefing from interested parties in a case involving Browning-Ferris Industries. In that case, the International Brotherhood of Teamsters asked the NLRB to find that Browning-Ferris Industries of California and Leadpoint Business Services, a Phoenix-based staffing firm providing temporary workers to Browning-Ferris, were joint employers of a group of those workers for collective bargaining purposes. In its request for briefs, the NLRB asked amici to weigh in on whether Leadpoint is the sole employer under the current joint employer standard, whether a new standard should be adopted and, if so, the definition of that standard.

Not long after that invitation, the NLRB Office of the General Counsel made an announcement regarding pending cases involving McDonald's Corp. restaurants. After investigating 181 cases of allegedly unlawful labor practices at franchise restaurants since 2012, the board found sufficient merit in at least 43 cases. In those cases, the general counsel's office said that parent company McDonald's USA LLC would be named as a joint employer respondent.