For the past three years, the federal government has painstakingly built a case against the worldâ€™s second-largest private employer, McDonaldâ€™s, charging the company with illegally harassing and terminating employees who have gone on strike with the â€śFight for $15 campaign.
There have been over 150 days of trial and hundreds of exhibits entered into the record. And though McDonaldâ€™s has aggressively fought to slow down the trial, attorneys at the National Labor Relations Board have continued to press the case.
Until, that is, the Trump administrationâ€™s political appointees showed up for work.Last month, shortly before the trial was expected to conclude, Peter Robb, the general counsel Trump appointed to the NLRB, announced that he wanted to halt the trial to settle the case with McDonaldâ€™s and its franchisees.
Settling a case might not sound so bad. But in this instance, â€śsettlingâ€ť is a euphemism for abandoning at the 11th hour a groundbreaking inquiry into whether a major employer like McDonaldâ€™s should be held accountable for violating the rights of its low-paid workers.
This bait-and-switch by the Trump administration has significant implications for workersâ€™ rights. Rather than walking away from a case the government has invested considerable time and resources pursuing over the last three years, the general counsel should allow the trial to close and give the judge an opportunity to rule on the important issues at stake.
The original charges filed against McDonaldâ€™s in 2014 made a novel and important claim that the corporation - not just the individual McDonaldâ€™s franchise owners - is responsible for the retaliation workers faced after joining a wave of strikes that started in New York City in November 2012 and spread to cities across the Midwest and West Coast the following year. The general counsel at the labor board during the Obama administration had determined that McDonaldâ€™s has so much control over its franchiseesâ€™ business practices that it has stepped into the role of employer.
And though itâ€™s impossible to predict the outcome at this point, there is lots of solid evidence that McDonaldâ€™s - as a corporation - does in fact meet the definition of an employer. For example, McDonaldâ€™s establishes hiring procedures that every franchisee in the case uses to select employees. McDonaldâ€™s provides franchises with an â€śOperations and Training Manualâ€ť that discusses, in detail, how to run a McDonaldâ€™s restaurant. And McDonaldâ€™s provides specific advice to franchisees about labor relations, including trainings on how to respond to the Fight for $15 strikes. This degree of involvement could easily provide the basis for a judgeâ€™s conclusion that McDonaldâ€™s is the employer of McDonaldâ€™s workers.
As a joint employer, the corporationâ€™s treasury would be available to pay the lost wages due to the workers. More important, joint employer status would allow workers to organize into one powerful union that represents all of McDonaldâ€™s workers rather than requiring them to unionize franchise-by-franchise.
But itâ€™s not just McDonaldâ€™s workers who have a stake in the outcome of this trial. More than 8 million people work for franchisees, and their number is increasing every year. According to David Weil, author of â€śThe Fissured Workplace: How Work Became So Bad for So Many and What Can Be Done to Improve It,â€ť the increase in franchising is part of broad trend in the economy - that also includes subcontracting and the use of independent contractors - in which large corporations are shedding responsibility for their workersâ€™ well-being.
Without a strong joint-employer rule, these millions of workers will face a world in which labor rights - including the right to minimum wage and overtime time pay, to safe and healthy workplaces, and to a voice at work - become mere illusions. Thatâ€™s because without a strong joint employer rule, franchising, subcontracting and similar business practices give employers easy routes to avoid complying with these critical laws.
Sharon Block is the executive director of the labor and worklife program at Harvard Law School. Benjamin Sachs is the Kestnbaum professor of labor and industry at Harvard Law School.