Ruben Alan Garcia
84 Geo. Wash. L. Rev. 741
This Note examines whether the joint employer standard of the National Labor Relations Board (“NLRB” or “the Board”) encompasses all the entities necessary to satisfy the legislative intent of the Board’s governing statute, the National Labor Relations Act (“NLRA”). Under current NLRB jurispru- dence, many franchisors escape liability for the unfair labor practices of their franchisee entities, leaving workers with little to no recourse when they seek enforcement of their rights under the NLRA. In examining recent struggles by workers seeking better conditions in many franchise workplaces, the history and evolution of the joint employer standard, and formulations of the joint employer standard in other legal contexts, this Note explains that there are current gaps in labor law enforcement that should be filled via a modification of the Board’s standard. This Note outlines a reformulated joint employer standard that the NLRB should apply and walks through an example of how the standard would function. This Note then discusses critics’ arguments against a new joint employer standard, relying on franchise industry members’ facts and economic studies to identify the likely outcomes of a new standard. This Note concludes that the current joint employer standard before the NLRB must be modified to reach many franchisors, thereby moving closer to realizing the NLRA’s legislative intent.
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