McDonald’s seeks to get franchise subpoena thrown out

McDonald’s has asked a US judge to reject a subpoena from the National Labour Relations Board in its case claiming the company is a “joint employer” of franchise workers, saying the requests are unfair and costly.

In a filing in a US court in Manhattan yesterday, McDonald’s said it had spent over $1m (€906,000) in the last few months producing over 160,000 pages of documents in response to the subpoena, even though the company says it will owe no more than about $50,000 if it is found liable for alleged labour violations at 29 franchises in five states.

While McDonald’s is not facing a large payout to workers, the case is of critical importance to the fast food giant and other franchisors, since a finding of joint employment would force such companies to bargain with unions and could impact the very basis of the franchise model.

The NLRB’s general counsel, which is comparable to a prosecutor’s office, is seeking emails and other documents from more than 50 McDonald’s executives and employees who work directly with franchise owners.

“The general counsel’s subpoena to McDonald’s is, we believe, one of the most burdensome in the history of the agency,” the company’s lawyers wrote.

The filing came ahead of a court hearing scheduled for tomorrow before US district judge Colleen McMahon.

The dispute, which will likely end up before the five-member board and then federal appeals courts, could drag on for years, McDonald’s has claimed.

The general counsel’s subpoena also seeks information on McDonald’s involvement in countering union-backed nationwide protests seeking a $15 minimum wage for fast food workers, which it says could indicate a joint employment relationship.

An NLRB spokeswoman declined to comment. NLRB lawyers in court papers filed in September said the subpoena was appropriate because it stemmed from evidence the general counsel had already uncovered suggesting McDonald’s exerts a significant amount of control over the working conditions of franchise employees.

The board in an August decision in Browning-Ferris Industries tossed out a 30-year-old standard defining joint employment as “direct and immediate control” over the working conditions of contract employees.

The NLRB said that even the potential to control factors such as wages and discipline could be enough, though it did not say that rule necessarily applied to franchises.