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UPDATE: NLRB Names McDonald’s USA, LLC as “Joint Employer”

05/21/2015

On December 19, 2014 the National Labor Relations Board (NLRB) Office of the General Counsel issued complaints against McDonald’s USA, LLC (McDonald’s) and numerous McDonald’s franchisees as “joint employers.” The complaints allege that McDonald’s and its franchisees violated employee rights by retaliating against employees for seeking improved wages and working conditions, including participation at nationwide protests. In its complaints, the NLRB asserts that McDonald’s “possessed and/or exercised control over the labor relations policies” of its franchisees and was a “joint employer” of the franchisees’ employees.

In a media statement released on December 19th, McDonald’s expressed its disappointment with the NLRB’s “decision to overreach and move forward with these charges” and stated that McDonald’s will “contest the joint employer allegation as well as the unfair labor practice charges in the proper forums.” The International Franchise Association said the complaints against McDonald’s represent a “grave threat to the franchise business model” and are contrary to over 40 years of legal precedent.

On December 29th, in response to the complaints in each case, McDonald’s filed a motion for a bill of particulars or, in the alternative, to strike joint employer allegations and dismiss the complaints. In its motion, McDonald’s contends that the NLRB’s allegations that McDonald’s “possessed and/or exercised control” over franchisee employees as a “joint employer” are conclusory and insufficiently particular to satisfy Fifth Amendment due process requirements. McDonald’s requested that the NLRB either provide specific, factual allegations as to the control McDonald’s exercises over the employees of each individual franchisee or dismiss the complaints against McDonald’s.

The NLRB has stated that it will continue efforts to resolve all allegations through settlement. To the extent issues are not settled, they will be determined by an administrative law judge. Decisions of an administrative law judge must be approved by the five-member National Labor Relations Board and decisions of the NLRB can be appealed to a Federal Circuit Court. Check back often for updates and additional information as Moye White follows this important matter.

ABOUT THE AUTHOR

Lynne M. Hanson

Co-Chair, Business Section

Craig J. Knobbe

Attorney