In a jarring reversal of fortunes, a pending National Labor Relations Board case that was supposed to be a weapon for unionizing hundreds of thousands of low-wage fast-food workers under Obama may now morph into an anti-labor bludgeon for big business under Trump. The fate of one of the country’s largest poverty-wage workforces now hangs on an arcane legal debate over whether McDonald’s can be held responsible as a formal employer for all the workers who toil under the Golden Arches.
The McDonald’s case, dating back to 2012, aims to undo a precedent that held that fast-food mega-chains like McDonald’s aren’t technically “bosses” of workers at their chain restaurants, and instead just license franchise owners to manage their workforces and labor conditions. Holding McDonald’s responsible as a joint employer might pave the way for collective-bargaining rights, and hence unionization, under a broad contract for McDonald’s employees nationwide. (McDonald’s restaurants in other countries in fact allow unionization and, surprise, workers can earn living wages and have real power to advocate for their rights.)
The case gained momentum in 2015 when the NLRB’s general counsel advanced the joint-employer case for all the workers represented in the suit, led by SEIU and the Fight for 15 campaign. Another breakthrough came under a separate case that year, when the board ruled to broaden the joint-employer standard for workers at the recycling company Browning-Ferris Industries: That decision found that a company could be considered a joint employer, alongside a franchisee, even if it did not exert “direct control” over those employees, for workers with essentially similar duties under the same conditions. That’s right in line with the situation of typical McDonald’s workers—wearing the same uniforms everywhere, flipping the same burgers, with the same erratically scheduled, low-paid shift work—and subject to the same rampant exploitation and labor violations nationwide. That precedent was just reversed in December.
Recently, Trump-appointed General Counsel Peter Robb derailed the McDonald’s case by moving for a 60-day stay on the trial. Judge Karen Esposito initially agreed that a settlement could be finalized while the trial was paused, but on February 1, another order followed to schedule additional hearing dates from mid-March through late April.