In this installment of the blog’s 360, I am going to spin off the temporary employee discussion and address the joint employer relationship.  Joint employment has certainly been a big Mcissue for McDonald’s these days and one that manufacturers should also keep on their radar. 

The National Labor Relations Board recently issued a complaint against McDonald’s USA, LLC and is claiming that the franchisor may be jointly responsible for the potential labor violations of its franchise owners because together they jointly exert significant control over the same employees.  The decision to target McDonald’s USA, LLC departs from longstanding precedent that corporations are not responsible for the actions of franchise owners, who pay for the right to use the company brand, but control day-to-day operations, such as wages and terms of employment.

While McDonald’s is in the spotlight today, the NLRB’s proposal to expand the joint employer standard was spelled out in more detail in a recent amicus brief filed in a case that had nothing at all to do with franchisors.  Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recycling & FPR-II, LLC, d/b/a LeadPoint Business Services & Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters, Case 32-RC-109684.  Interestingly, the NLRB chose this case because it involves a union that wants a company at the table in collective bargaining involving subcontracted workers.  The union claims in its brief that

The difficulties presented by this triangulated workforce structure has created a second-tier workforce of employees working for lower wages and fewer benefits than the standard employees performing the exact same work. 

The  NLRB essentially argues that a joint employment relationship should be found whenever “industrial realities” make an entity essential for meaningful bargaining.  Both this case and the McDonald’s case are pending. 

Stay tuned.  The NLRB has announced that the issue of whether, and under what factual scenarios, a business will be alleged to be a joint employer will be a focus of NLRB enforcement actions.  While the law remains unsettled in this area, as a preventative measure, manufacturers should examine their business relationships with other entities where the control of the workforce, including wages and working conditions, may be shared.