There has been so much bad news in the world of late that it is hard to find time to comment on the July 29 decision by National Labor Relations Board General Counsel Richard Griffin, Jr. to treat McDonald’s as a “joint employer” with its franchisees for the purposes of labor statutes.  That decision, if upheld, would subject McDonald’s to liability for all the actions that its franchisees take with respect to their employees.

In the particular cases before Griffin, the potential finding of liability is said to be for “activities surrounding employee protests.”  But everyone knows that these actions are just the tip of the enforcement iceberg.  Griffin’s real target is to allow individual workers, backed by union dollars, to bring actions for minimum wage and overtime violations under the Fair Labor Standards Act, and to make McDonald’s — and, by implication, all other franchisees — fair game for union organizers and reverse the major decline in union membership.

The decision here is properly understood as a gatekeeper decision. Before the decision, the gates against the NLRB were shut tightly by the conventional tests used to determine whether any given party should be treated as an “employer” under the NLRA. Most unhelpfully, the act defines an employee as including “any person acting as an agent of an employer, directly or indirectly” (after which it exempts a whole host of government employers from the statutory definition). Some further clarity is added to the discussion by the statutory definition of an “employee,” which does not include “any individual having the status of an independent contractor.”