The National Labor Relations Board has targeted major franchise brands as joint employers. This effort is designed to assist employees deemed at the bottom of the pay scale, deemed “vulnerable.” Targeting McDonald’s Corp. as a joint employer with its franchisees is motivated by an articulated policy to facilitate effective bargaining over wages and working conditions. (See “NLRB Office of the General Counsel Issues Consolidated Complaints Against McDonald’s Franchisees and Their Franchisor McDonald’s USA LLC as Joint Employers,” published by the NLRB on Dec. 19, 2014.)
Contrast this with the U.S. District Court for the Northern District of California’s recent decision in Ochoa v. McDonald’s, 2015 U.S. Dist. LEXIS 129539 (September 25, 2015), which holds that under California employment law, the franchisor is not a joint employer. Why are the state and federal paths diverging? It seems that the definition of employer under state law is becoming more restrictive but the definition under federal statutes has become more flexible. The reason is a federal political agenda to empower the National Labor Relations Act to encourage collective bargaining of employees of franchises.
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