National Labor Relations Board’s Unorthodox Treatment of McDonald’s Joint Employer Case

By now, if you’re remotely interested in what happening at the NLRB, you are familiar with the McDonald’s joint employer case. If you’ve just crawled out from under a rock, this case will determine whether McDonald’s and its franchisees are joint employers. Currently they are not, which benefits companies, but this Board is not shy about changing the current status of the law to benefit unions. In total, there are 61 unfair labor practice charges alleging 181 violations of the National Labor Relations Act against McDonald’s and 31 franchisees in six NLRB Regions.

The Board recently determined that it would hear evidence on the idea that McDonald’s is a joint employer with its franchisees before considering evidence about the underlying unfair labor practice charges. In essence, the Board decided to determine who is liable for any unfair labor practices before ruling whether any unfair labor practices exist in the first place. This is called putting the cart before the horse. Or is it counting your chickens before they hatch?

Also odd is the unprecedented consolidation of all the charges. The alleged violations involve circumstances specific to particular employees at a specific location owned by a unique company. No two cases are like. Each has its own nuances. By lumping them all together many franchisees will be denied due process rights and be subjected to delays and costs that otherwise would not have existed if their cases were heard in the traditional manner.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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