McDonald’s Case Should Resume, Senators Tell Labor Board

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By Hassan A. Kanu

A group of Senate Democrats asked the federal labor board today to forgo settlement talks and resume hearing a high-stakes case alleging that McDonald’s shares responsibility when its franchisee restaurant owners violate labor laws.

The case is on hold for settlement talks. It involves claims by workers at McDonald’s USA LLC franchisee restaurants who said they were retaliated against for going out on strike. A ruling that McDonald’s is a joint employer of workers at a franchisee’s restaurant would apply to other businesses with a similar franchise model and could affect the rights of millions of workers.

Settlement talks picked up after the National Labor Relations Board scrapped an Obama-era legal standard in December. That case, Hy-Brand, made it easier to hold affiliated businesses liable as joint employers. The board’s top lawyer, Peter Robb, began having settlement discussions “at McDonald’s instigation” the month after the decision, according to a letter obtained by Bloomberg Law.

But the board recently vacated the Hy-Brand decision after the NLRB inspector general found that one of the new Republican board members shouldn’t have participated in the case. That left the board’s joint employment test in place, at least for the time being. It also means that the board should continue litigating the McDonald’s case, Sens. Elizabeth Warren (D-Mass.), Kamala Harris (D-Calif.), Cory Booker (D-N.J.), Sherrod Brown (D-Ohio), and Kirsten Gillibrand (D-N.Y.) told Robb.

“The Board’s abandoning of Hy-Brand eliminates whatever support may have existed for your efforts to settle the McDonald’s case,” the senators said. “It is imperative that you swiftly resume and finish the trial.”

The litigation had already stretched over five years when Robb moved to end the trial and began settlement talks. The trial was “a mere two witnesses from closing,” the lawmakers wrote in their letter.

The NLRB didn’t immediately respond to a request for comment from Bloomberg Law.

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