The news for America’s low-wage workers has been pretty bleak these past, oh, 30 or 40 years or so. Their pay has stagnated and their bargaining power has atrophied, even as their corporate overlords have seen their own profits and compensation soar. But there are signs of a brightening underway, and the latest one arrived Tuesday in the form of a possibly consequential finding against one of the most iconic low-wage employers of all, McDonald’s.
The general counsel of the National Labor Relations Board, Richard Griffin Jr., ruled that he would include McDonald’s as a “joint employer” in the 43 unfair labor practice complaints filed by McDonald’s workers over the past 20 months that Griffin deemed had merit (the complaints mostly involve retaliation against workers who engaged in organizing efforts). In the past, McDonald’s and other big fast-food chains have avoided responsibility in such cases, on the premise that their thousands of franchisees are the real employers, not the corporate giant in whose name they operate. If, as expected, Griffin’s ruling is upheld by the full NLRB, it could give a major boost to efforts to organize workers at the $5.6 billion chain, or at the very least pressure the company to raise wages and improve working conditions: McDonald’s will no longer be able to claim that such decisions are within the purview of each individual franchisee, and unions may no longer have to go about the near-impossible task of organizing restaurants outlets one-by-one.
“This strikes at the heart of the low-wage franchise model, which passes the buck to the franchisees while companies make huge amounts of profit,” said Kendall Fells, executive director of Fast Food Forward, a union-backed campaign that’s been agitating for higher wages and better working conditions, in a conference call with reporters. “We’ve had McDonald’s workers fighting on the ground with the argument that ultimately the company is responsible for all the working conditions under them…Now we have the board saying they agree with these workers. This is…a big shock to the industry as a whole and McDonald’s specifically. It puts it on the hook for everything that’s happening in the stores—wages, wage theft, health and safety, workers passing out in the store because it’s too hot…McDonald’s now is not in a position to distance themselves.”
The National Restaurant Association and International Franchise Association decried the finding, and conservatives are sure to tie it to another major move by Griffin’s predecessor as NLRB general counsel, to block Boeing’s move of thousands of jobs from pro-union Washington state to anti-union South Carolina. But the NLRB is on more solid political ground in this case.
Even as the push to raise the federal $7.25 minimum wage has stalled against Republican opposition in Congress, advocates for low-wage service workers have been winning plenty of local victories, while rallying public opinion to their side. Democratic-led Massachusetts, Connecticut and Seattle, among other jurisdictions, have all raised their minimum wage above $10—Seattle will be at $15 next year—while even the Republican-dominated government in Michigan approved an increase to $9.25, to head off a ballot referendum for yet higher-levels this fall. Major employers are feeling the pressure, too—facing strikes, Johns Hopkins Hospital recently agreed to a deal that raises wages for veteran service workers to $15 per hour. Democratic candidates are campaigning on a higher minimum wage, even in red states like Kentucky. And polls suggest they’re smart to do so, with even a majority of Republican voters saying they support raising the minimum wage. Put simply, most Americans get that it’s just not right for someone who works full-time scrubbing bathrooms or flipping burgers or emptying bedpans be earning well below the poverty level. (And no, most fast-food workers are not teenagers taking their first step on the job ladder, happy to be getting experience and some gas money: more than two-thirds of fast-food workers are over the age of 20.)
Despite the growing pressure, though, fast-food chains like McDonald’s have been able to hide behind the veil of the franchise model, disavowing responsibility for what happened inside restaurants. Worker advocates have long argued that this was a charade, given the strict terms that the company dictates to its franchisees (whose plight Tim Noah described not so long ago in Pacific Standard). “There’s no doubt who’s in control,” said Micah Wissinger, the Levy Ratner partner who is arguing the unfair labor practice complaints before the NLRB. As Richard Eiker, a veteran McDonald’s worker from Kansas City, described to reporters on a conference call Tuesday, the company sends representatives to his store a half-dozen times a year to check on the business, in addition to sending “secret shoppers” for undercover visits, and the restaurant’s operations are closely tracked on a corporate computer system. “The only thing the franchisees can skimp on is wages,” said Eiker, who now makes $11.05 per hour taking out the trash and cleaning bathrooms—after 25 years as a McDonald’s employee.
It remains to be seen how soon worker advocates will start pushing for similar findings against other fast-food chains (Subway, for one, recently asked the U.S. Department of Labor for assistance in training its franchisees in better complying with labor law). And it remains to be seen how directly Griffin’s ruling will apply to fast-food organizing campaigns—the NLRB’s process for overseeing union elections is technically separate from the unfair-labor-practice charges that generated this finding, but the finding will unquestionably aid unions in the future as they try to organize more than just one franchise at a time. “It would certainly make it easier,” said Wissinger. “If there was a determination that [a fast-food chain] was a joint-employer, it would carry weight in an election.”
For now, though, the finding should offer affirmation on two points that have too often been lost in the demoralization of a gridlocked, post-recession Washington. One, that it matters quite a lot who is in charge of the executive branch and making appointments to even relatively obscure agencies such as the NLRB. Two, that even in the absence of movement on Capitol Hill, agitation for movement more broadly can still make a difference.