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McDonald’s documents frustrate the NLRB

McDonald’s Corp. is annoying the National Labor Relations Board in its investigation of the franchisor as a joint employer by borrowing federal agencies’ tactic for withholding sensitive information.

The NLRB has complained in legal filings that McDonald’s corporate staff is redacting subpoenaed documents—masking segments with heavy black markers—to hide information the agency suspects to be relevant, according to court documents seen by the Washington Examiner.

McDonald’s counters that the blacked-out info is not pertinent to the investigation, and that it has a right to protect “sensitive and personal” information about its operations.

The NLRB has also complained that McDonald’s is not responding quickly to the requests for documents.

In an investigation of alleged anti-union activities by some McDonald’s franchisees, the NLRB has reclassified the franchisor as a joint employer of the licensed operations’ staffs. It has asked a federal judge to halt McDonald’s editing of materials that could illustrate how much control McDonald’s had over field-level operations and personnel.

McDonald’s argues that the subpoenas secured by the NLRB are overly broad. It noted in a statement to the Examiner that it has already supplied 160,000 pages of information to the agency, with more required to meet the subpoena.

The NLRB acknowledges that it has sought information in 114 areas of inquiry, including how McDonald’s monitors franchisee operations to ensure compliance with the franchisor’s standards.

The investigation of McDonald’s as a joint employer is seen as a test case of the NLRB’s recent redefinition of the legal term. The NLRB has changed its interpretation of the standard, making it applicable to parties with an indirect influence on a related party’s employment policies and practices.  The expansion of the definition could extend the label of joint employer to franchisors and contractors.

In a complaint brought against McDonald’s franchisees by members of the Fight for $15 movement to raise quick-service wages, the NLRB decided that McDonald’s control of franchisees’ operations and menus make it a joint employer. As such, it is liable for the labor activities of franchisees, the agency argued.

The matter is being closely watched by other restaurant franchisors.

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