McDonald’s Joint Employer Case Paused Amid Labor Board Talks

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Ben Penn

The National Labor Relations Board’s exhaustive joint employer lawsuit against McDonald’s USA LLC is now on hold for 60 days, allowing the parties time to strike a deal.

An NLRB Administrative Law Judge approved Jan. 19 General Counsel Peter Robb’s (R) request to pause the trial, in which board attorneys previously argued that the fast-food giant is responsible for alleged labor violations committed by franchisee restaurant owners. The case had been set to resume on Jan. 22. The NLRB and McDonald’s attorneys are discussing a “global” settlement of “all pending charges” against McDonald’s and its franchisees, according to legal filings obtained by Bloomberg Law.

ALJ Lauren Esposito said although the timing to stay the proceeding is “not optimal,” with the protracted litigation finally close to concluding, she would allow the delay nonetheless. She cited the five-member NLRB’s recent decision in a separate case that scrapped an expanded approach to joint employment. After earlier finding a business may be considered a joint employer if it exerts only indirect control over workers, the board—under a new Republican majority—reverted in December to a stricter standard that focuses on direct control.

The NLRB, under previous general counsel Richard Griffin (D), had argued that McDonald’s was a joint employer of franchisee workers claiming their bosses interfered with the workers’ right to organize and retaliated against them for participating in walk-outs and demonstrations. However, the Democratic general counsel argued in that original 2014 case that McDonald’s is a joint employer under either the broad or narrower legal standard.

If a settlement is not reached, the trial will resume on March 19.

“It is my sincere hope that during the requested stay the parties will make an assiduous and good faith effort toward conclusively resolving this case,” Esposito said in the order.

Union Not Happy

The charges were brought on behalf of workers who had participated in the Fight for $15 organizing campaign, an initiative of the Service Employees International Union.

“After more than three years of trial, it’s more obvious than ever that McDonald’s illegally harassed and fired workers for going on strike for $15 and union rights,” Adriana Alvarez, a McDonald’s worker and Fight for $15 leader, said in a statement. “Now, with only two days left of trial, the lawyer Trump put in charge of our case wants to give McDonald’s a get-out-of-jail-free card.”

McDonald’s, through spokeswoman Terri Hickey, said it is pleased the the trial is on hiatus.

“This provides McDonald’s U.S. independent franchisees an opportunity to resolve these matters on acceptable terms, as they have requested for several years,” Hickey said in her statement. “McDonald’s USA simply is not a joint employer with its franchisees, and we are hopeful that this development will lead to a long overdue and successful resolution of the pending cases.”

Request Labor & Employment on Bloomberg Law