POLITICO has an update on the settlement between McDonald’s and the NLRB that I posted about yesterday. It’s unlikely this settlement will have any impact on other joint employer cases.
A settlement submitted by McDonald’s in administrative law proceedings would “provide 100 percent of back pay” to workers involved in the case, the NLRB said in a written statement today.
The NLRB confirmed reports yesterday of a settlement submitted to Administrative Law Judge Lauren Esposito, saying it represents “a full remedy for all unfair labor practice cases pending.” The fast-food giant has also agreed to a fund to pay out in the event of further breaches of any settlement agreement.
McDonald’s and the NLRB’s Trump-appointed General Counsel, Peter Robb, are eager to reach a settlement in order to avoid creating a precedent holding a major franchiser liable for the labor practices of its franchisees. Robb’s predecessor, Obama-appointed Richard Griffin, argued in filing the case that McDonald’s was a “joint employer” with its franchisees because, among other reasons, it kept close track of franchisee employees through a computer system.
“These settlements represent a full remedy for the employees who have waited since the first charges were filed in November of 2012 and, if approved, would avoid years of possible additional litigation,” the NLRB said.
But the lawyer for workers in the case rejected the NLRB’s favorable characterization and said he would present his objections to the judge.
“This proposal by McDonald’s is not a settlement,” said Micah Wissinger, an attorney representing the workers. “In a real settlement, McDonald’s would take responsibility for illegally firing and harassing workers fighting to get off food stamps and out of poverty.”
POLITICO Pro is reporting on a couple of interesting cases developing out the restaurant industry. One is a potential joint employer settlement between McDonald’s and the NLRB. The other an odd case where a judge holds a Chipotle worker to be in contempt of court over a suit filed under the Obama administration’s overtime rule.
McDonald’s submitted a settlement with the NLRB general counsel to the administrative law judge presiding over its joint-employer case, according to two sources close to both sides in the case.
The NLRB’s Office of the General Counsel sued McDonald’s during the Obama administration, alleging it was jointly liable for the firing of McDonald’s workers employed by its franchisees. But in January a new Trump-appointed general counsel requested a pause in the trial to explore a potential settlement.
Matt Haller, the chief lobbyist for the International Franchise Association, confirmed that McDonald’s submitted its proposed settlement to the court this morning, as did a person close to the workers’ side. The NLRB did not immediately respond to requests for comment.
McDonald’s pushed to settle after the board overturned the Obama-era board’s joint employer standard in December, making it harder to hold the company liable for labor violations committed by its franchisees. But the board withdrew that pro-business decision in February after the NLRB’s inspector general said that William Emanuel, a Trump appointee, shouldn’t have participated due to a conflict of interest.
The fast-food company presented the settlement “as a done deal,” according to the person close to the workers, “but the judge was very clear it’s not done until she says so.” Administrative law Judge Lauren Esposito gave the charging parties 24 hours to decide how much time they need to prepare for a hearing on the settlement.
Pro-business groups are pushing to include a joint employment fix in the omnibus bill expected to come out tonight. Their bill, H.R. 3441 (115), would codify the more pro-business joint employment standard into law.
“The McDonald’s case does nothing to settle the uncertainty for franchisers and franchisees and address the broader question of joint employment,” Haller said.
A federal judge in Texas today held a Chipotle worker in contempt by bringing a suit against the Mexican restaurant chain for back pay under the Obama administration’s overtime rule.
The worker filed a lawsuit against Chipotle last year, arguing that the company withheld time-and-a-half pay under the Obama administration’ rule, even though the rule never took effect because the same court issued an injunction. Attorneys for the worker argued that their lawsuit wasn’t a violation of the court’s order because the court, in issuing an injunction against enforcement, didn’t stop the rule itself from taking effect. They also argued the federal injunction didn’t stop lawsuits under state law.
The judge didn’t agree with that argument and ordered the worker to withdraw the complaint and pay Chipotle’s legal fees.