That hasn’t happened before. Until recently, it was the franchise owners who were responsible––and thus liable––for the employees behind the fry cookers. But slowly this has changed.
The U.S. has more than 14,000 McDonald’s locations, and it says 70 percent of its American employees are either women, or people of color. In fact, McDonald’s is often praised for its diverse workforce. The fast-food industry, as a whole, employs a disproportionate amount of black or Latino workers when compared to their share of the U.S. population. And the median pay for bottom-level fast-food jobs was $8.69 an hour, according to a University of California, Berkeley, study. This is why the fight for a $15 minimum has often been cast as not only a struggle to help the working poor, but to help the disproportionate amount of people of color who work in fast-food.
After the November 2012 national protests (The New York Times called it “the biggest wave of job actions in the history of America’s fast-food industry”) some McDonald’s workers who participated or tried to organize unions said they were later fired, warned against organizing, or even scolded for participating in rallies. The Service Employees International Union filed complaints on behalf of the workers with the NLRB. But instead of filing complaints against each franchise, as has been customary since the Reagan era, the NLRB’s lawyers named the McDonald’s Corporation as the responsible party, calling it a “joint employer.”
That phrasing is important. In July 2014, the NLRB’s general counsel said McDonald’s headquarters qualified as a joint employer because of how much it controls the way a franchise works. Then in 2015, another NLRB ruling broadened that interpretation further.
This was a reversal of the board’s Reagan-era interpretation of the standard in which a parent company had to show “direct and immediate” control over the employees of a franchise in order to be considered a joint operator. That created an insulating wall between the franchise owner and corporate headquarters. If workers unionized, they’d have to negotiate not with corporate, but with the many disparate franchises. But a change in that standard means proving McDonalds––or any corporation––has enough control over its franchises to be considered a joint employer became a lot easier.
Jamie Rucker, the lead lawyer for the NLRB in the McDonald’s case, said Thursday in court that top corporate staff tell franchises how to train employees, lay out employees’ job descriptions, and recommend how long they should spend on each task.
“The level of control this gives McDonald’s over its franchisees is very fine-grained and specific,” Rucker said.
Corporations like McDonald’s, as well as the franchises, are upset with this new logic.
“Millions of jobs and the livelihoods of hundreds of thousands of independent franchise small businesses are now at risk due to the radical and unprecedented nature of this decision,” Steve Caldeira, the president and CEO of the International Franchise Association, said in a statement after the 2014 ruling. “Ruling that franchises are joint-employers will be a devastating blow to franchise businesses and the franchise model.”