Wyatt Employment Law Report

Employers Have Opportunity to Comment on NLRB’s Proposed Joint Employer Rule

By Sharon Gold

The National Labor Relations Board (“NLRB”) recently proposed a rule establishing the standard for determining joint employer status under the National Labor Relations Act.  Employers have until November 13, 2018 to comment about the proposed rule.  The proposed rule, commentary and instructions on commenting are available here.

There have been several changes to the definition over the past few years, which has caused uncertainty for employers.  The proposed rule states that employers are joint employers “only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.”  Proposed Rule Part 103.40.  “A putative joint employer must possess and Continue reading

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McDonald’s Loses Another Round at the NLRB

By George J. Miller

McDonald'sWebsiteOn March 17th, the National Labor Relations Board (NLRB) issued another decision unfavorable to McDonald’s USA and certain McDonald’s franchisees. This was the Board’s fifth decision in this massive case, in which the unions and the Board’s General Counsel are trying to prove that McDonald’s and its franchisees are a joint employer of the franchisees’ employees, and McDonald’s is therefore responsible for any unfair labor practices of its franchisees. In the latest development, a two member majority of a three member NLRB panel agreed with an administrative law judge’s decision to severely limit the scope of documents which McDonald’s could subpoena from the unions and other non-party organizations which had assisted the unions in their efforts against McDonald’s.

The labor unions, which are the charging parties, are the Service Employees International Union (SEIU), Fast Food Workers Committee, Pennsylvania Workers Organizing Committee (a project of the Fast Food Workers Committee), Workers Organizing Committee of Chicago, Los Angeles Organizing Committee, and Western Workers Organizing Committee.

The non-party organizations which received McDonald’s subpoenas are: Mintz Group, LLC, and LR Hodges & Associates, Ltd., both private investigative firms hired by the SEIU’s law firm; Berlin Rosen, Ltd., a firm specializing in public affairs and strategic communications; and New York Communities for Change, Inc., a nonprofit advocacy organization which Continue reading

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NLRB Adopts Broad Definition of Joint Employer

By Michelle D. Wyrick

The National Labor Relations Board’s (“NLRB’s”) revised joint-employer standard spells trouble for businesses that rely on temporary employees or contingent workers and businesses that use the franchisor-franchisee model. Citing the dramatic growth in contingent employment relationships, on August 21, 2015, in Browning-Ferris Industries of California, Inc., the NLRB abandoned its more limited joint-employer standard and adopted an expansive new standard designed to encourage collective bargaining. Under the NLRB’s old test, an entity could be found to be a joint employer only if it had the authority to control workers’ terms and conditions of employment and if it actually exercised direct and immediate control over the workers. Under the new test, an entity may be found to be a joint employer if it has the authority to control workers’ terms and conditions of employment, even if it never exercises that authority.

Applying its new test, the NLRB concluded that BFI Newby Island Recyclery (“BFI”) and Leadpoint Business Services (“Leadpoint”) were joint employers of the workers that Leadpoint supplied to BFI under a temporary labor services agreement. Under the temporary labor services agreement, Leadpoint recruited, interviewed, tested, and hired workers to perform work for BFI. In determining that BFI was a joint employer, the NLRB found it significant that Continue reading

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NLRB Asserts McDonald’s Is a “Joint Employer” of Employees of Its Franchisees

By Amanda Warford Edge

The NLRB’s general counsel announced on December 19, 2014 that he will proceed with thirteen (13) cases involving seventy-eight (78) charges against McDonald’s USA, LLC and its franchisees.  The alleged violations took place against McDonald’s workers in several cities throughout the country, including: Detroit, St. Louis, Manhattan, Philadelphia, Atlanta, Chicago, Kansas City, New Orleans, Los Angeles, Phoenix, San Francisco, Minneapolis and Indianapolis.  McDonald’s and its franchisees allegedly retaliated illegally against employees who participated in union-related activities by reducing their hours, terminating them and/or subjecting them to other disciplinary actions.

By filing the cases against McDonald’s and its franchisees, the general counsel is asserting that McDonald’s can be liable as a “joint employer,” despite the fact that many of the alleged labor violations were committed by independent franchise owners.  This has sweeping industry implications, striking at the very heart of the franchise system.  Unions, of course, see the cases as a win, claiming that Continue reading

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NLRB May Be Expanding Definition of Joint Employer

By Edwin S. Hopson

On May 13, 2014, the National Labor Relations Board (Members Hirozawa and Schiffer; Member Johnson, dissenting) announced that in Browning-Ferris Industries and Leadpoint Business Services, Case No. 32-RC-109684, a union representation election case, that it had granted review of the regional director’s decision in order to determine if the Board’s current joint employer standard should be modified. The current Board consists of three Democratic and two Republican Members. One can assume that the Democratic Members wish to loosen the standard so that union bargaining units can be expanded to include persons formerly considered independent contracts or employees of another employer.

The Board has invited the filing of briefs by not only the parties but also interested amici. The issues identified to be addressed are:

  1. Under the Board’s current joint-employer standard, as articulated in TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985), and Laerco Transportation, 269 NLRB 324 (1984), is Leadpoint Business Services the sole employer of the petitioned-for employees?
  2. Should the Board adhere to its existing joint-employer standard or adopt a new standard? What considerations should influence the Board’s decision in this regard?
  3. If the Board adopts a new standard for determining joint-employer status, what should that standard be? If it involves the application of a multifactor test, what factors should be examined? What should be the basis or rationale for such a standard?

The briefs may be filed on or before June 26, 2014.