Election 2016
Continued from page 23
realities test,”which hinged on whether the joint employer
had a hand in the key aspects of employment. Now, the
board utilizes a “totality of circumstances” rule, under which
numerous elements must be examined to determine when a
joint employer maintains“sufficient influence over the working
conditions of the entities’ employees.”
While no specific guidelines have been put forth by the
NLRB, it is clear the net has been cast to include franchisors.
In March, a case began in a New York court to determine
whether McDonald’s is a joint employer of franchisees’ employees.
The case arose from the NLRB general counsel’s decision to
consolidate complaints in July 2014 against multiple McDonald’s
franchisees and McDonald’s USA as joint employers.
“The thrust of the NLRB’s argument in the McDonald’s
case is that the franchisor controls the working conditions
of franchise employees – setting out details ranging from
restaurant cleaning procedures, to questions to be asked in the
hiring of franchise employees, to minutiae of the food ordertaking process – to such a minute degree that, in the words
of the NLRB’s counsel, ‘it is responsible for what happens to
workers subject to those conditions,’” said Brent Arnold and
Allen Craig, partners at law firm Gowling WLG, in an article
from Lexology.
Oklahoma, Georgia, Indiana, Louisiana, Michigan,
Tennessee, Texas, Utah and Wisconsin have enacted legislation
declaring that franchisors are not considered joint employers.
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24
2016 Issue 2 |
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PA I D S I C K L E AV E
While there are no federal paid sick or family leave laws,
several states and municipalities have enacted such regulations.
New York, California, New Jersey and Rhode Island have
programs funded through payroll deduction that covers a portion
of the employee’s wages for 4 to 12 weeks. San Francisco will
require businesses with 20 or more employees to cover the
balance for full paid leave in