The recent decision of the General Counsel of the NLRB to expand ULP liability to McDonalds, under a joint employer theory, should not come as a surprise to anyone. As some may recall, the NLRB recently requested briefing on the issue of joint employer status in the organizing context as previously noted by this blog. Since this is a matter of ongoing prosecution by the NLRB, disclosure of the Advice Memo from the General Counsel’s office, in support of the legal theory behind the General Counsel’s determination to proceed against McDonalds, will not be made at this time. My gut is that the Board will have a difficult time applying liability to any franchisor in such circumstances given the elaborate contractual agreements that normally take place in the franchise world. Liability, from an NLRA perspective, is just one of many which has been a point of concern in the past under such arrangements. In the world of employment law efforts to make franchisors liable under a joint employer relationship have not been that successful, and I do not believe that the General Counsel’s attempts will be any different. Hence, while each case will be viewed independently, under the current state of the law regarding joint employers, it is going to be an uphill battle for the General Counsel to establish such liability.
