A third view on the ‘joint employer’ debate

Editor’s note: Restaurant Business Daily has been running various parties’ opinion of “joint employer,” the legal concept that restaurant franchisors should be held accountable in court for the employment policies and practices of franchisees. An op-ed from the National Employment Law Project argued that the shared responsibility was right and welcomed. The National Restaurant Association responded in an op-ed yesterday that the NELP had it wrong.

Here, restaurant consultant, writer and former Nation’s Restaurant News Editor Michael Whiteman weighs in. Whiteman is president of the firm Baum & Whiteman, which has opened and operated a number of celebrated restaurants in New York City.

Other opinions that contribute to insightful, intelligent dialogue are welcomed. If you want to air your view, email Peter Romeo, promeo@cspnet.com.

A third view on the ‘joint employer’ debate

By Michael Whiteman

The NRA certainly has a tenable and precedential position regarding the NELP ruling that stitches franchisee behavior to franchisors.  But I'd like to comment on two points in their rebuttal:

1. If small business startups are failing more rapidly than being born, as the NRA states, they can't use that as a weapon against NELP since the failure trend precedes this current controversy.  One could say the same thing about the current upward trend in wages (although we never hear about rising beef or dairy costs being "job killers," do we?)

2. The issue is far larger than restaurant franchising. It extends to large American corporations insulating themselves from services and goods that they theoretically supply.  Hiring companies in Southeast Asia to find manufacturers of smartphones and t-shirts; or hiring contractors in corporate uniforms to deliver your packages; or bringing on companies that hire people to clean your buildings or mow your lawns or even maintain the airplanes you fly in ... all these ultimately will represent a challenge to who is responsible for what.  If American clothing brands were on the hook every time a factory collapses or goes up on flames on the sub-continent, we'd be living in a different world.  So the question here is:  How much distance do we want tolerate between people whose name is on what they sell and their disassociation from the conditions in which these products or services are made and delivered?


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