More on the NLRB’s joint employer standard

Insurance Journal has a good article on the legal issues surrounding the NLRB’s general counsel’s decision that McDonald’s can be considered a joint employer in complaints against franchisees.

If the five-member, Democrat-controlled NLRB board agrees with Griffin, the agency’s top prosecutor, corporations that may be far removed from day-to-day personnel decisions made by franchisees and contractors will be exposed to new legal risks, critics said.

“I just don’t see him staking out such a public position on this without some level of confidence that the board majority is going to side with him or at least move the ball heavily in that direction,” said Seth Borden, a labor lawyer at McKenna, Long & Aldridge.

Workers’ groups and labor unions say such a change will compel corporations to take responsibility for working conditions that are ultimately under the companies’ control. . . .

Griffin’s announcement that McDonald’s could be liable for 43 alleged instances of employee rights violations departs from the board’s current standard that typically shields from liability franchisors and other business entities that do not employ workers directly.

In prosecutorial decisions and briefs filed with the board, Griffin has said he believes the board should abandon its current standard for one that reflects the “economic reality” of employment relationships.

Such an expansion could lead to board findings of joint liability for franchisor and franchisee, contractor and contractee and even an entity’s use of a vendor, legal experts said.

Employers and business groups see a union-propelled push that would lead to nationwide organizing campaigns. They fear businesses could be swept after the fact into labor disputes and union negotiations over which they have little influence. . . .

The story also describes the next steps in the process:

Appointed general counsel by Obama, Griffin previously had been a member of the NLRB board.

His announcement was a preliminary step in a lengthy process for handling charges filed by workers with the NLRB. Only charges deemed to have some merit prompt the general counsel’s office to bring a complaint. Then an agency administrative law judge (ALJ) presides over a trial.

ALJ decisions go to the NLRB’s board for consideration. The board’s decisions can be appealed in federal appeals courts, with each side able to argue its case.

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