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Labor Law Experts React to NLRB Determining McDonald's Is a Joint Employer

New York— Labor law experts from around the country reacted to a determination yesterday by the National Labor Relations Board General Counsel that McDonald’s is a “joint employer”—despite the company’s repeated assertions to the contrary. The decision by the NLRB General Counsel shows that McDonald’s exerts substantial control over workers in its franchised restaurants, leaving little doubt as to who’s the boss.

Mark Barenberg, professor of law at Columbia Law School said:

“The determination from the NLRB’s General Counsel has the potential to upend the fast-food industry's decades-long strategy of "out-sourcing" legal responsibility to franchisees when it comes to securing workers' rights. Companies like McDonald’s insert an intermediary between themselves and workers, even though they're manifestly in control of the franchisees' employment decisions. The General Counsel’s determination leaves no doubt that franchise workers are McDonald's employees.”

Michael Fischl, professor of law at the University of Connecticut School of Law, said:

“Like other fast-food franchisors, McDonald's is trying to have it both ways when it comes to its relationship with employees working in stores bearing its name.  On the one hand, in order to protect its "brand," the Mother Ship micromanages virtually every aspect of day-to-day operations, from food preparation to customer service and everything in between.  On the other hand, in order to circumvent the rights of its employees under the National Labor Relations Act, it proclaims that it is "shocked, shocked" that anyone would think it actually exerts such extensive control over its franchised stores. The General Counsel's determination to treat McDonald's as a "joint employer" suggests that going forward the NLRB will be paying more attention to what franchisors are doing than to what they are saying they do.”

Catherine Fisk, Professor of Law at the University of California, Irvine School of Law, said:

“Under a wide variety of federal and state laws, when two corporations both exercise control over working conditions, both are legally responsible to ensure compliance with labor and employment law.  That’s the well-established joint employer rule.  The NLRB General Counsel’s determination shows that McDonald’s exercises so much control over the operation of individual franchise restaurants that it is a joint employer with the franchise operator. A fast food company can’t have it both ways:  it can’t exercise such pervasive control over a workplace and effectively dictate wages and working conditions while still saying that it’s not the employer.

Julius Getman, Professor of Law at the University of Texas at Austin School of Law, said:

“The National Labor Relations Act was passed with the specific goal of ‘encouraging the practice and procedure of collective bargaining.’ Congress realized that strikes and labor unrest resulted from the refusal of employers to recognize unions and collectively bargain with workers for higher wages and better working conditions. Employers like McDonald’s seek to avoid recognizing the rights of their employees by claiming that they are not really their employer, despite exercising control over crucial aspects of the employment relationship. This from the NLRB’s General Counsel recognizes the reality of McDonald’s power and control. McDonald’s should no longer be able hide behind its franchisees.”

Catherine Ruckelshaus, general counsel of the National Employment Law Project and co-author of the recent report, Who’s the Boss: Restoring Accountability for Labor Standards in Outsourced Work, said:

“McDonald’s claims that it has no influence over the wages and working conditions of its employees, but it effectively controls workers’ pay, hours and schedules by controlling every other variable in the business except wages. Technological advances allow McDonald’s to watch over its franchisees’ operations like a hawk, in ways that go well beyond simply protecting its brand. The NLRB General Counsel determination leaves no doubt that McDonald’s is an employer and puts an end to its self-serving charade that it is not.”


To connect with any of these experts, please contact Alex Edwards at 202-800-8691 or email at [email protected] 

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