Lately, there is never a dull moment at the National Labor Relations Board (NLRB). Recent NLRB decisions have rewritten the labor law map in a variety of ways but nowhere more significantly than in the areas of franchising and outsourcing. With the decision in Browning-Ferris Industries of California, which dealt with a temporary staffing agency1 and, more recently, in a decision by the NLRB’s general counsel involving McDonald’s USA, LLC,2 the definition of a “joint employer” has grown exponentially broader. This portends a vast expansion of employer liability on a joint employer theory in almost every area of law imaginable from tort to employment discrimination litigation.
In the McDonald’s USA case, the NLRB’s general counsel authorized consolidated complaints in July 2014 against multiple McDonald’s franchisees and their franchisor, McDonald’s USA, as joint employers. On Dec. 19 the NLRB’s general counsel commenced litigation alleging that McDonald’s USA and its franchisees violated the rights of employees working at McDonald’s restaurants around the country by, inter alia, “making statements and taking actions against them for engaging in activities aimed at improving their wages and working conditions, including participating in nationwide fast food worker protests about their terms and conditions of employment.”3 As a result, McDonald’s must defend 61 unfair labor practice charges involving 31 franchisees with 181 separate violations at 30 different locations.
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