The National Labor Relations Board (NLRB) general counsel’s July 29, 2014, ruling that McDonald’s is a joint employer of those who work for its roughly 14,000 franchised restaurants in the United States continues to send ripples through both the legal and business worlds. The NLRB general counsel’s decision was made in an internal, unpublished memorandum concerning a group of cases filed with the board asserting that McDonald’s as well as its franchisees had violated the rights of franchisee employees with respect to protests over wage and hour issues. Significantly, however, the NLRB usually follows the legal advice of its Office of the General Counsel, or OGC.1
The OGC’s ruling first will be tested before administrative law judges (ALJ) who hear the employees’ claims in these cases. Assuming that the ALJs find against McDonald’s, there seems little doubt that the company will appeal to the full, five-member NLRB.2 Because three of the NLRB’s members are former union representatives or employees, some consider the board to be sympathetic to the interests of employees and unions, which might well lead to decisions upholding ALJ decisions against McDonald’s.3 Thereafter, the matter will likely end up in the courts, with ultimate review by the U.S. Supreme Court a real possibility.
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