Vital victories for employees, but corporate power persists

In recent years, the National Labor Relations Board (“NLRB”) has rendered a number of courageous decisions that promote workplace fairness for both union and non-union employees. For example, the NLRB ruled that employers cannot retaliate against employees who criticize their working conditions via social media platforms, such as Facebook and Twitter. Costco Wholesale Corp., 358 NLRB No. 106 (2012). In addition, an NLRB administrative law judge ruled that college athletes are employees within the meaning of the law and, therefore, have the right to organize and secure better working conditions. Northwestern Univ., 13-RC-121359 (2014). Most recently, the NLRB decided enough is enough with the corporate shell game that has been used to avoid liability for everything from wage, retaliation, discrimination, and/or harassment claims to corporate taxes. In particular, the NLRB’s Office of General Counsel just authorized legal action against McDonald’s, USA, LLC and its franchises for workplace violations as a joint employer.

The concept of a joint employer or integrated enterprise has long been recognized under law, as exemplified by Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, rhrg. and rhrg. en banc denied 578 F.3d 787 (8th Cir. 2009), but the courts have been increasingly reluctant to find that an integrated enterprise exists in labor, employment law, civil rights, and consumer protection cases. The narrow approach typically taken by the courts – which stands in sharp contrast to the NLRB’s approach now – speaks volumes about the ongoing sway that corporations hold over the nation’s political and legal systems. Indeed, one Federal court of appeals just ruled that apparent victims of torture and other human rights violations reportedly carried out at the behest of Chiquita Brands International cannot pursue their claims in court despite a Federal statute specifically authorizing pursuit of such claims. Counsel for the company at the time of the alleged human rights violations was Eric Holder, who now is the country’s Attorney General and heads the Department of Justice under President Barack Obama.