Correspondence

Dear General Counsel Griffin:

Your office recently filed an amicus brief indicating the National Labor Relations Board (NLRB) should adopt a broader standard to determine joint-employer status under the National Labor Relations Act (NLRA). A month later, your office authorized complaints against McDonald’s, USA, LLC and McDonald’s franchisees as joint-employers. To better understand these recent actions, we write to request documents and information regarding the joint-employer test under the NLRA.

Since 1984, to determine whether two separate entities should be considered joint-employers, the NLRB analyzes whether alleged joint employers share the ability to control or co-determine essential terms and conditions of employment. Essential terms and conditions of employment include hiring, firing, discipline, supervision, and direction of employees. The joint-employers’ control over these employment matters must be direct and immediate.

On May 12, 2014, the NLRB issued a notice and invitation to file briefs in Browning-Ferris Industries as to what standard the NLRB should apply to determine joint-employer status under the NLRA. On June 26, 2014, your office filed an amicus brief in this case encouraging the NLRB to adopt a new, significantly broader joint-employer test.