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NLRB-McDonald's settlement
ducks joint
employer issue |
Fast Food Workers Committee
v. NLRB (DC Cir 04/22/2022)
http://case.lawmemo.com/dc/fastfood.pdf
Sent to Custom
Alerts™ subscribers on 04/23/2022
The Fast Food Workers
Committee and Service Employees International Union sought review
of the NLRB’s approval of the settlement agreements between the
Board’s General Counsel on the one hand, and McDonald’s and a
group of McDonald’s franchisees on the other.
The unions'
primary concern was the agreements’ failure to determine whether
McDonald’s is a joint employer with its franchisees.
The DC
Circuit upheld the Board, saying the Board reasonably concluded
that the benefits of the settlement agreements outweighed the
value of continued litigation over the joint employer issue.
The NLRB's General Counsel issued complaints alleging the
franchisees violated the NLRA by threatening employees and
unlawfully retaliating against them for protected union activity.
Importantly, the complaints alleged McDonald's could be
held jointly and severally liable as a joint employer, even though
it was not alleged that McDonald's independently violated the Act.
General Counsel, McDonald's, and the franchisees entered
into settlement agreements that did not treat McDonald's as a
joint employer.
The Board concluded that the absence of a
joint employer finding for McDonald’s did not make the settlements
inappropriate. The Board observed that the settlements placed a
number of obligations on McDonald’s, even if McDonald’s was not
treated as a joint employer: The 10 franchisees whose alleged
violations resulted in lost earnings would pay 100% of the backpay
owed to the alleged discriminatees, plus interest; those 10
franchisees would each contribute to a $250,000 Settlement Fund
that would compensate discriminatees if a franchisee committed the
same type of violation within nine months of the settlement’s
approval.
Although the settlements did not treat McDonald’s
as a joint employer, they did require McDonald’s to take certain
actions to support the settlements. If a franchisee did not
comply, McDonald’s would mail a notice to the employees of the
franchisee stating that the franchisee violated the Act and the
settlement, and that McDonald’s disavows the conduct. McDonald’s
was also required to collect money for the Settlement Fund from
the franchisees and deposit it with the Board.
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