McDonald’s Labor Board Deal May Speed Joint Employer Ruling

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By Lawrence E. Dubé

Oct. 13 — McDonald’s USA LLC and its franchisees agreed to let the National Labor Relations Board decide whether they’re joint employers, even before processing dozens of related unfair labor practice charges across the country ( McDonald’s USA, LLC , NLRB ALJ, No. 02-CA-093893, order 10/12/16 ).

The case has been watched closely because of the NLRB general counsel’s claim that the franchiser’s indirect or potential control over fast food employees supports a finding that it is a joint employer with local restaurant operators. Changing the way the nationwide litigation proceeds will avoid delaying a resolution of the issue “until well into the next decade,” Administrative Law Judge Lauren Esposito said.

Esposito Oct. 12 approved the employers’ agreement with the NLRB general counsel to sever a proceeding that is now underway in New York from dozens of unfair labor practice cases slated for future hearings in Chicago and Los Angeles. The Chicago and Los Angeles hearings will be held in abeyance until the board reaches a final decision in the New York cases.

Joint Employer Litigation Underway

Acting on an authorization by General Counsel Richard F. Griffin, six NLRB regional directors issued complaints in December 2014 alleging McDonald’s USA and local franchisees were jointly responsible for acts of unlawful interference and discrimination against restaurant employees who participated in fast food worker protests across the country.

The general counsel has alleged in part that McDonald’s USA exercises enough indirect control over local employment conditions through store management procedures and computer software to show it is a joint employer with local restaurants. McDonald’s and the franchisees have denied they are joint employers under the National Labor Relations Act.

Esposito opened a hearing in New York in March 2015 on charges that arose in Region 2 (New York) and Region 4 (Philadelphia). She has now presided over 65 days of hearings.

Agreement Allows Earlier Board Ruling

On Sept. 21, attorneys for the general counsel advised Esposito they planned to call 35 more witnesses on the joint employer issue over 38 days of hearings, while McDonald’s attorneys projected their defense on the joint employer question would require 60 to 70 hearing days. Esposito said the estimates convinced her that hearing cases from all of the regional offices in one consolidated multicity proceeding is “impossible.”

On Oct. 7 the parties agreed to sever the New York and Philadelphia cases from cases that originated in regions 13, 20, 25 and 31. Esposito approved the stipulation and said the parties will proceed on the Region 2 and 4 cases until they’re completed and the board rules on the joint employer issue. The remaining cases will be held in abeyance until the board acts.

The ALJ said the procedure is fair to all parties and “will most expediently adjudicate the joint employer issue.”

To contact the reporter on this story: Lawrence E. Dubé in Washington at

To contact the editor responsible for this story: Peggy Aulino at

For More Information

Text of the ALJ order is available at

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