While several major National Labor Relations Board decisions came out over the last ten days, labor watchers are still waiting on the Browning-Ferris ruling with baited breath. As we have discussed previously, the Browning-Ferris decision could fundamentally alter how the Board determines whether a given entity is a “joint employer” under the National Labor Relations Act.
The existing standard examines whether two or more employers “share or co-determine matters governing the essential terms and conditions of employment” of a group of employees. If so, those entities will be deemed to be “joint employers,” and both entities can be subject to liability under the Act. But if the General Counsel and the unions get their way, the Board could throw out more than thirty years of precedent (which it has become fond of doing lately) and adopt an unstructured “totality of the circumstances test.” And it is difficult to say what that test would look like in practice.
More troublingly for employers, the Board’s General Counsel has already begun acting as if his proposed joint-employer standard has been implemented. As the reader may recall, General Counsel Griffin announced back in July that his office had authorized complaints against both McDonald’s franchisees and their franchisor, McDonald’s USA. The complaints were set to issue despite a dearth of evidence that McDonald’s USA had committed any unfair labor practices or had “shared or codetermined matters governing the essential terms and conditions of employment” of the franchisees’ employees.
And as a practical matter, a decision that alters the existing “joint employer” standard could further galvanize the “Fight for Fifteen” movement. If and when fast food employees begin unionizing under the SEIU or another entity underwriting the group’s activities, the union will likely be able to negotiate not only with the franchisee, but also with the franchisor because the franchisor would likely be deemed a “joint employer” of the franchisee’s employees under the amorphous “totality of the circumstances” test advocated by the General Counsel.
So on the week before Christmas, all labor watchers can do is adopt a wait and see attitude. It would not be surprising if this decision drops later this afternoon in order to take advantage of the Friday afternoon news glut. Stay glued to @LRToday and our twitter feed, where we will have coverage and analysis of the Board’s decision as soon as it drops.