{"id":32,"date":"2015-06-30T19:57:14","date_gmt":"2015-06-30T19:57:14","guid":{"rendered":"http:\/\/mbclegal.com\/blog\/?p=32"},"modified":"2016-03-22T20:06:39","modified_gmt":"2016-03-22T20:06:39","slug":"joint-employment","status":"publish","type":"post","link":"https:\/\/marcusboxerman.com\/blog\/joint-employment\/","title":{"rendered":"NLRB Provides \u201cFresh\u201d Guidance on Joint Employment"},"content":{"rendered":"

\"jointOn April 28, 2015 the National Labor Relations Board (\u201cNLRB\u201d) issued an advisory opinion to the NLRB Chicago Region regarding joint employment. \u00a0The NLRB concluded that neither Freshii Development, L.L.C. (\u201cFreshii\u201d), a fast-casual restaurant franchisor with over 100 franchised locations, nor its area development agent, is a joint employer with one of its Chicago-area franchisees.<\/p>\n

In the summer of 2014, Nutrionality, Inc. (\u201cNutrionality\u201d), a Chicago-area Freshii franchisee, terminated an employee for attempting to unionize fellow employees. The OGC was called to render an opinion as to whether Nutrionality and Freshii were joint employers, such that Freshii would be liable for any unfair labor practices committed by Nutrionality.<\/p>\n

Click HERE<\/a> to read the OGC\u2019s advisory opinion.<\/p>\n

Under the current NLRB standard, franchisors are considered joint employers of their franchisees\u2019 employees only when they \u201cshare or codetermine those matters governing the essential terms and conditions of employment,\u201d such as hiring, firing, discipline, supervision and direction, determining wages and benefits, setting work hours and ongoing training of franchisee employees.<\/p>\n

The OGC, however, recently proposed that the NLRB revert to a previous joint-employer standard, where a franchisor could be considered a joint employer even where the franchisor did not assert any direct or indirect control over terms and conditions of employment. Rather, the totality of the circumstances would be considered, and if \u201cindustrial realities\u201d made the franchisor\u2019s participation necessary in the collective bargaining process, the franchisor would be considered a joint employer with the franchisee.<\/p>\n

In this case, the OGC found that Freshii played no role in its franchisees\u2019 decisions regarding hiring, firing, discipline, supervision, wages, hours, benefits, and labor relations, and has never terminated a franchise agreement for \u201cnon-brand related reasons.\u201d The opinion noted that Freshii would not be considered a joint employer under either the current standard or the previous standard.<\/p>\n

If the NLRB chooses to revert to the previous standard as the OGC advises, franchisors will once again be left a bit uncertain as to how to protect themselves from joint employer liability, but, for now, employers can best protect themselves by doing the following:<\/p>\n