Thousands of low-wage workers told the federal labor board to scrap its proposal for a “joint employer” rule, saying it would make it easier for companies to dodge legal liability for violating worker rights.
More than 3,000 workers and allies submitted comments to the National Labor Relations Board Dec. 11, generally criticizing the proposed rule for when more than one company can be liable for labor law violations. The policy is urgent for franchises and businesses that use contracted labor because it determines which entities have to bargain collectively with unions and increases exposure to litigation.
The NLRB is expected to hear from many business groups and unions during the public comment period for the rule. But the workers’ Dec. 11 submission provides the agency with direct input from some of the millions of employees who will be affected by the final rule.
“The volume matters, but the level of engagement that individual participants have also matters,” Alexander Hertel-Fernandez, a political scientist at Columbia University, told Bloomberg Law. Hertel-Fernandez wrote a book on the phenomenon of employers recruiting their employees to contact policymakers in the rulemaking process. “There you see much more of the cookie cutter form letters that are pushed out over corporate intranet, and workers are encouraged to tweak them,” he said.
But a mass submission with individualized statements “can be even more compelling, to the extent they’re able to channel the workers’ voices,” he said.
The workers’ comments come as McDonald’s LLC appeals an administrative judge’s rejection of its settlement offer in a major joint employment case. Workers allege the fast food giant has enough control over its owner-operators to share responsibility for their legal violations.
“It’s hardly noteworthy that Fight for $15 is coordinating yet another push for an expanded joint employer standard as part of their yearslong goal to unionize the quick service restaurant industry,” a spokesperson for the International Franchise Association said. IFA advocates for franchisors and franchisees. “Their involvement, along with the SEIU, has been well-known and well-documented—and I expect more information will come out in the NLRB public comment process.”
Democrats in Congress will control the House labor committees in January and are likely to latch on to the submissions to make their arguments against the NLRB’s proposed rule. Business and corporate groups have generally backed the NLRB’s proposal, saying the current policy is unclear and causes job loss because investors look to avoid the increased risk joint liability presents.
“The agency looks forward to reviewing all comments received on the proposed rule,” a spokesperson for the labor board told Bloomberg Law.
Issue Is Control Over Workplace
The joint employer issue revolves around the question of which entity has actual control over working terms and conditions for employees.
Under the proposed rule, companies would have to exert “substantial direct and immediate control” over another’s workers to be considered a joint employer.
The more worker-friendly policy currently in place came via a case decision issued during
“Our intent here was that the workers have a point of view on this—they’re in the work sites, they know these places—and their voices should be heard directly,” Mary Joyce Carlson, an attorney for Fight for $15, told Bloomberg Law. Carlson is working on the NLRB joint employer case against McDonald’s.
One question asked of workers was, “How do you know you work for McDonald’s/Burger King/Wendy’s etc.?”
The comments generally describe circumstances the workers say demonstrate McDonald’s LLC’s substantial control over franchisees’ restaurants.
“I worked for a corporate” store “and now for a franchise and it’s the same exact thing—we work for the same company,” wrote Estefany Romero, a McDonald’s employee in California. All McDonald’s “run the same rules,” Romero said.
Stacie Scott, who works at a McDonald’s in Missouri, said franchisees and owner-operators “call corporate and make decisions that way” when something goes wrong.
“McDonald’s USA is not and never has been a joint employer with its franchisees,” a McDonald’s spokesperson told Bloomberg Law via e-mail. Representatives of Wendy’s and Burger King didn’t immediately respond to a request for comment.
Trump Agencies Looking to Change Rule
The Labor Department is also looking to change current policy on joint employment.
The NLRB put its proposal forward in September, after it had to withdraw a case decision that would have had the same effect of making it harder to show joint liability. The ruling was withdrawn because of one board member’s conflict of interest.
Another recent comment against the NLRB’s proposal relies on Bureau of Labor Statistics to estimate that it would carry a $1.3 billion annual bill workers would have to pay in the form of lost wages.
The Economic Policy Institute, a left-leaning think tank that made that submission, said data from 2017 shows contracting firms and temporary help agencies employed 2.3 million workers who would be harmed by the current proposal.
The comment period ends Jan. 14.
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(Updated with comment from International Franchise Association.)