‘Joint Employment’ Decision Does Little to Clarify Legal Landscape for Chains and Franchisors

6 Min Read By Jim Coleman, David Phippen

On December 28, 2018, the majority of a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit mostly upheld an expansive “joint employment” standard adopted by the National Labor Relations Board (NLRB) during the Obama administration. That standard expanded the reach of potential “employer” responsibility with respect to labor relations matters before the Board under the National Labor Relations Act, and affected restaurant owners and operators in franchise systems, joint ventures and parent-subsidiary relationships. 

But the 2-1 decision arguably did little to clarify the bounds of such potential employer responsibility. In any event, the decision may be moot because the current NLRB under the Trump administration has begun the process of issuing joint employer regulations that would be more “friendly” to employers.

BackgroundThe background of the NLRB joint employment issue is long and convoluted. Before 2015, the Board said that an entity…