L OST IN S PACE : T HE NLRB A FTER N OEL C ANNING Francis L. Van - - PDF document

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LOST IN SPACE: THE NLRB AFTER NOEL CANNING

Francis L. Van Dusen, Jr. and Wayne Landsverk I. SUPREME COURT OVERTURNS 20 MONTHS OF 2012-2013 BOARD DECISIONS IN NOEL CANNING. A. Introduction. On June 26, 2014, the U.S. Supreme Court effectively overturned more than 1,300 published and unpublished National Labor Relations Board (“NLRB” or “Board”) cases decided from January 2012 to August 2013, when the Court unanimously held that three Board members had been improperly appointed by President Obama in “recess appointments.” NLRB v. Noel Canning, No. 12-1281, ___ U.S. ___ (June 26, 2014). The

• verturned cases included new restrictions placed on employers trying to stop bullying of

coworkers and front-line supervisors through abusive use of social media and restrictions

• n employer confidentiality provisions in workplace investigations. The decision also

invalidated the January 2013 appointment of the new regional director, Ronald Hooks in Seattle, and former acting NLRB general counsel, Lafe Solomon. In a unanimous decision, the Court decided that President Obama’s recess appointments of three Board members on January 4, 2013, were unconstitutional because the Senate was not in recess. Law professors may parse through more than 100 pages of conflicting rationales for the Court’s holding. Middle school and high school teachers may use the end result to teach the importance of separation of powers in the U.S. Constitution. For employers, however, the ultimate impact of Noel Canning may be more limited than last summer’s headlines suggested. B. NLRB Noel Canning damage control. The NLRB has been trying to minimize Noel Canning’s damage to its agenda to encourage unionization and promote employee rights—an agenda that has complicated life for human resources directors during the second decade of the 21st century. The ultimate effect of Noel Canning for employment professionals includes the following: 1. All NLRB opinions from January 2012 to August 2013 are

• suspect. Given the invalidity of the recess appointments, there were not enough

properly appointed and confirmed members to issue decisions during those 20 months. 2. The last time a group of NLRB decisions was invalidated by a Supreme Court ruling, the NLRB set up a process for reviewing these decisions and ultimately affirming the outcome of the overruled decisions in the vast majority of

• cases. In 2010, the Court held that two members of the five-member Board lacked

authority to issue decisions in New Process Steel L.P. v. NLRB, 560 U.S. 674 (2010).

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3. Some very significant 2012-2013 decisions are potentially in question as a result of Noel Canning. These include the NLRB’s first Facebook termination cases, a case addressing whether the employer has the right to suspend dues checkoff when a union contract expires, a decision limiting the employer’s confidentiality instructions to employees during workplace investigations, and a case undermining the employment-at-will rule in nonunion workplaces. 4. With the need to reassess these and many other cases, the NLRB’s agenda on other items may be slowed. For example, the resources necessary to reexamine the numerous decisions invalidated by yesterday’s ruling may cause the NLRB’s “ambush” election rule to be delayed. C. Region 19 director Ronald Hooks’s decisions in Seattle under attack. The NLRB took action on July 18, 2014, a few weeks after Noel Canning, and retroactively ratified the appointment of new regional directors, such as regional director Ronald Hooks’ transfer from Memphis to Seattle, replacing retiring director Richard Aharn on January 6, 2013. Region 19 covers all of Alaska, Idaho, Oregon, and Washington plus western Montana. On July 18, 2014, the board voted to ratify its prior actions in transferring and appointing new regional directors such as Mr. Hooks. See Appendix A. Although there is no question that director Hooks has full authority as of July 18 of this year to act as regional director, it is questionable whether the NLRB’s attempt to retroactively approve his earlier authority is effective. Id. Currently pending in the Ninth Circuit is an appeal of an Eastern District of Washington decision in which the Eastern Washington trial judge ruled that Mr. Hooks lacked authority to issue an injunction preventing an employer from engaging in a purported pattern of unfair-labor-practice charges. Hooks v. Kitsap Tenant Support Serv., Inc., No. 13-35912 (9th Cir.). Because the attack on director Hooks’s authority is jurisdictional and can be raised at any time, any employer appealing a decision from Region 19 that was issued between Mr. Hooks’s transfer on January 6, 2013, and the NLRB meeting on July 18, 2014, should include in its challenge of the regional director’s order a challenge to his authority and the jurisdiction of the administrative law judge or panel hearing the case. D. Employers should anticipate that the Board’s rulings on social media, confidentiality of workplace investigations, and attacks on the employment at-will rule will be reinstated. Of broader significance are the hundreds of cases that were decided by the NLRB between January 6, 2012, the date on which President Obama made the recess appointments, and August 12, 2013, when Congress finally reached a compromise and approved a full Board of five members and new NLRB general counsel Richard Griffin. Employers should anticipate that the significant cases invalidating employers’ rules restricting employee use of social media, attacking confidentiality provisions in workplace investigations, and some employment at-will rules will be reinstated.

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1. Unilateral modification of union medical plans. In Mike-Sell’s Potato Chip Co., 361 NLRB No. 23 (2014), the Board reinstated its March 2013 holding on unilateral charges in a health and welfare plan that the Supreme Court’s ruling in Noel Canning had invalidated. The Board essentially reinstated its 2013 ruling on the same basis a year later after the new Board was correctly appointed and approved by the Senate. In view of the decision of the Supreme Court in NLRB v. Noel Canning . . . , we have considered de novo the judge’s decision and the record in light of the exceptions and briefs. We have also considered the now-vacated Decision and Order, and we agree with the rationale set forth therein. In that case, the Board held that the potato chip manufacturer had unlawfully modified the health and welfare provisions of a collective bargaining agreement with the union by unilaterally changing its unionized employees’ health benefits. The decision upheld the administrative law judge’s findings regarding the 2012 change. Employers can expect the current Board to reinstate virtually all the invalidated 2012 and 2013 cases as soon as it has the opportunity. 2. Dues checkoff at the termination of a collective bargaining agreement. In Lincoln Lutheran of Racine, No. 30-CA-111099 (NLRB Aug. 11, 2014), an administrative law judge ruled that the employer’s unilateral termination of dues checkoff upon expiration of the collective bargaining agreement was lawful under a 1962 case (Bethlehem Steel Co., 136 NLRB 1500 (1962)), despite the NLRB’s attempt to

• verrule 15 years of precedent in WKYC-TV, Inc., 359 NLRB No. 30 (2012). For 50 years

employers have been allowed to unilaterally stop deducting union dues at the expiration or termination of a collective bargaining agreement. Because the NLRB overruled Bethlehem Steel prospectively, and the precedent did not apply to the television station, there was no

• appeal. But the ALJ in Lincoln Lutheran of Racine ruled that the WKYC decision was not

controlling precedent because it had been decided by a panel that was invalidly appointed under the Supreme Court’s decision in Noel Canning. The ALJ ruled that the employer’s unilateral termination of union dues deductions upon expiration of a collective bargaining agreement was lawful under Bethlehem Steel and that the Board had not had jurisdiction to issue its decision in WKYC and thus could not overrule Bethlehem Steel. While everyone should anticipate that the current Board will eventually reinstate its rulings from 2012 and 2013 made by the invalidly constituted Board, until it does, employers may be able to avoid some of the more onerous decisions between January 2012 and August 2013. Still undecided is whether the Board can apply its attempt to reinstate its 2012 and 2013 precedents retroactively. Eventually, these issues will have to be sorted out by the Board and ultimately the courts.

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3. Employment-at-will policies and the NLRB. Noel Canning also affects the cases in which nonunion employers’ employment-at-will policies have been struck down as unlawful. These precedents can be avoided by carefully drafting such a policy. An employer can lawfully impose an employment-at-will policy, as long as the employer does not state that the employment-at-will policy is not subject to change. All an employer has to do to guarantee the lawfulness of its employment-at-will policy is to state that the policy can be changed

• nly by the company president in writing. Policies phrased in that way are lawful because

they implicitly allow unions to organize and negotiate “for cause” termination provisions. E. Six final thoughts on Noel Canning ramifications. For employers, the following six points may well be the best approach to take while the NLRB with a full panel of five members approved by the Senate attempts to reinstate all the rulings that it issued from January 2012 until August 2013, which Noel Canning has essentially nullified. 1. If the “invalid” Board issued a decision before January 2012 and August 2013 impacting an employer, that employer should promptly analyze its

• ptions.

2. If an employer has a case in abeyance or pending based on Noel Canning, it should expect action by the Board in the coming weeks if the Board has not already taken action. 3. Employers should look for settlement opportunities with regions, unions, and individuals that may be present because these adverse parties may be more amenable to settlement now that their theory of the case may lack valid authority or, in the case of the NLRB, its workload has suddenly expanded. 4. Employers should explore filing supplemental position statements or other filings in any case in which the region, union, or employees relied

• n an “invalid” decision decided by the Board between January 2012 and August 2013.

5. Employers should similarly explore filing supplemental position statements attacking the jurisdiction of any order issued by regional director Hooks since his appointment as director in Region 19 in Seattle in January 2013 through July 18, 2014. See Appendix A. 6. Despite the number of significant decisions whose authority has been invalidated by the Supreme Court’s ruling, employers should still remain cautious, because the current composition of the Board provides absolutely no reason for employers to consider that it is going to view issues any differently in 2014 and 2015 than it did from January 2012 through August 2013.

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II. COMING SOON: AMBUSH ELECTIONS. A. How the NLRB rulemaking proposal shrinks the election timeline. When the Employee Free Choice Act (“EFCA”) failed to pass in 2009, union officials were devastated. But now the NLRB has used its regulatory power to propose a rule to “streamline” the normal election process. This rule gives Big Labor at least one item on its wish list: a shortened election cycle that will likely leave employers with three weeks or less to educate employees on the realities of unionization. Figure 1 Most employees know very little about unionization, and unions use this fact to their advantage in their organizing campaigns. Union officials know that the less time a company has to respond to union organizing, and the more uninformed the voters are, the better the chances that the union will win an election. Although not as valuable a prize as “unionization by card-check” (that’s what unions tried to get through EFCA), a shortened election cycle is a welcome consolation prize for Big Labor. The NLRB initially proposed and adopted a “quickie” election rule in 2011 (and briefly enacted it in 2012), but those actions were invalidated because not enough NLRB members voted on the rule. The NLRB then withdrew its initial rule and re-proposed a virtually identical rule in 2013. Hearings were held in April 2014, and the NLRB could issue the final ruling at any time. The wheels are in motion: The “ambush election” rule is coming. In December 2014, NLRB member Nancy Schiffer’s term will expire. This will leave the NLRB with only four members—two Democrats and two Republicans. Board Chairman Mark Pearce will not want Ms. Schiffer’s term to expire before acting on a proposed

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“ambush election” rule change that drastically impacts businesses’ ability to successfully fight and win union-organizing campaigns. So what will this new rule do? Here is a comparison of the current election process to the proposed process. 1. The current process. Figure 1 compares the current timeline to the proposed one. The top arrow shows the process that has existed for decades. Once a petition is filed, the NLRB aims to hold a hearing in about seven days (unless there is a stipulation or consent agreement between the parties). After a hearing or a consent agreement, an employer then has seven days to provide to the NLRB a list of all the names and addresses of the affected employees. This is called an Excelsior list. The NLRB immediately shares that list with the union, which gets at least ten days to use the list before the election, unless the union waives that right. The regional director then schedules a 25- to 30-day waiting period between a hearing decision (or consent agreement) and the election. The NLRB blames this 25- to 30-day waiting period for the “delay” in the current process. Once the election is held, both sides have seven days to file objections to the election. An objection sets in motion a post- election hearing and review process. 2. The proposed process. The proposed NLRB election process looks like the timeline illustrated by the bottom arrow in Figure 1. It differs from the current process in four key ways: a. An initial hearing is required within seven days of the filing of a petition. b. The employer must file a Statement of Position (“SOP”) on any issues regarding the election before the hearing. c. The Excelsior list must be produced in just two days after the hearing and requires much more detail. d. The required SOP must outline every single issue that the employer believes is in play in the case. If an issue isn’t raised in that initial SOP, the employer is barred from ever raising that issue in the future. The SOP is a high-pressure document and challenging to generate in a week. Any unit or jurisdictional issues, and anything that the employer could ever want the NLRB or a court of appeals to hear, must be contained in that initial SOP. That is a very tough requirement, especially for small employers that aren’t already represented by labor counsel. Under the existing process, an employer has seven days to produce the Excelsior list (the employee list with names and addresses); under the proposed rule, that list must be produced within two days of either the hearing or a stipulation. And under the

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new rule, the employer must deliver much more detailed information on impacted employees than just their names and addresses. Under the new rule, the Excelsior list must also include each employee’s phone number, e-mail address, department, and shift. To recap, the NLRB is shrinking the time that the employer has to provide the list by 70 percent and more than doubling the amount of information that must be included. Looking again at the timeline, under the new process the union continues to have a ten-day period to review and use the employee list (unless it waives it) before an

• election. But the Board eliminates the 25- to 30-day waiting period before an election, with

all appeals to be handled after the election. With this waiting period eliminated, employers could be facing an election just 19 days after the union petition is filed. And if the union were to waive its right to ten days with the employee list (as it might with a small unit), the election period could shrink to as few as nine days. As with the current process, objections would still be due within seven days

• f the election. Under the proposed process, however, both pre-election issues (such as

unit issues affecting less than 20 percent of eligible voters) and election objections would be handled at a post-election hearing held within seven days of the objections being filed,

• r within 14 days of the election date.

Keep in mind that the proposed rule does not mandate all these targets, but it does make them possible. It does not say that elections have to happen in 19 days or in 21 days, but by getting rid of the 25- to 30-day review period, the election cycle will shrink

• substantially. While elections could happen in fewer than ten days, most NLRB watchers

believe that, under the new rule, elections will happen between 21 and 25 days after a petition is filed. This means that employers will have less than half the time they have previously had to educate their employees on the realities of unionization. B. How to cope. Under the new rules, employers and employees will have a limited

• pportunity to react and understand the challenges posed by an election. Employers will

need to prepare for organizing efforts before a petition is filed and act swiftly once a petition is received. Because the tight deadlines under the new rules will limit the effectiveness

• f any reactive responses to organizing activity, employers should be proactive and

immediately develop plans for responding to an election campaign if one arises. Further,

• nce a petition is filed, employers will have little time to train or inform personnel on how

to conduct a lawful election campaign. Therefore, employers should also make sure that managers are well informed about permissible and impermissible election conduct and communications beforehand. Employers will also want to continue keeping a “finger on the pulse” of employee morale. By doing so, employers may not only eliminate the need for an election in the first place, but also be in a better position to implement effective responses to an election campaign.

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An employer should do bargaining-unit analysis and preplanning in the event of an organizing campaign in order to identify potential challenges to a likely proposed bargaining unit. With the condensed timelines, the employer will need to quickly investigate and determine any issues in the proposed bargaining unit. If not, the employer may lose its ability to later challenge a proposed bargaining unit. The “vote now/understand later” posture of the proposed rules potentially puts the employer at a disadvantage in an organizing campaign. Yet the employer can get a jump on the proposed rules by being aware of the new requirements when a petition for election is filed, proactively evaluating potential vulnerabilities and responses to an

• rganizing campaign, and preparing a plan for action.

III. OTHER TOP NLRB ISSUES TO MONITOR IN THE COMING YEAR. A. Union supporters using employer’s intranet. In May of this year, the NLRB called for briefing from the parties and interested union and employer groups on whether to overturn Guard Publ'g Co., 351 NLRB 1110 (2007) (“Register-Guard”), which that held employees had no statutory right to access company e-mail systems when attempting to organize. Purple Communications, Inc. No. 21-CA-095151. The 2007 Register-Guard decision has been a target of union activists ever since the Board held that employees had no statutory right to use an employer’s e-mail system to organize workers. In July 2009, the D.C. Circuit upheld the NLRB Register-Guard decision, and speculation immediately focused on Register-Guard as one of the Bush Board cases that the Obama Board might overturn. Register-Guard, 351 NLRB 1110, enf'd in relevant part and remanded, 571 F.3d 53 (D.C. Cir. 2009). Under Register-Guard, employers can prevent any messages from being sent on the company intranet as long as all other solicitations by third parties are kept off the intranet. Thus, employers’ policies may prevent all solicitation, including union solicitation, on e-mail, bulletin boards, and other employer-owned communications. On April 3, 2014, the Board formally asked the parties in Purple Communications and other interested union and employer groups to file briefs addressing issues related to whether the Board should overrule the holding in Register-Guard that “employees had no statutory right to use their employer’s e-mail system for Section 7 purposes.” Primary among the list of questions that the Obama Board raised are: 1. Should the Board reconsider its conclusion in Register-Guard that employees do not have a statutory right to use their employer’s e-mail system (or other electronic communication systems) for Section 7 purposes? 2. If the Board overrules Register-Guard, what standards of employee access in the employer’s electronic communications system should be established? What

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restrictions, if any, may an employer place on such access, and what factors are relevant to the restrictions? 3. As the Board decides the questions above, to what extent and how should the impact on the employer of employees’ use of the employer’s electronic communications technology affect the issue? 4. Do employee personal electronic devices (e.g., phones, tablets) social media accounts, and/or e-mail accounts affect the proper balance being struck between employers’ property rights and employees’ Section 7 rights? While no one can predict exactly how the NLRB will come out on all these questions, there seems to be little doubt that the current Obama Board will reverse the Register-Guard holding and provide employees with some access to an employer’s intranet and other electronic communications systems for union-organizing purposes. In her dissent in the Register-Guard case, former NLRB chairman Wilma Liebman considered e-mail systems as the modern equivalent of discussions around the water cooler. Seven years after she issued her dissent, it appears that the Obama Board is poised to adopt her dissent as the new, majority view. B. Weingarten revisited. The Obama Board could also restore Weingarten rights to nonunion

• employees. Because the Bush Board reversed the Clinton Board’s decision granting

nonunion employees the right to have a coworker present at all disciplinary meetings, there was no reason to believe that the Obama Board would not change this rule back to the Clinton Board rule. Under the Clinton Board, every employee had a statutory right to a coworker witness at any disciplinary meeting or meeting that could result in the imposition

• f discipline, even if the employer’s workers were not represented by a union. After almost

six years, however, the Obama Board has yet to have a case come along that presented the

• pportunity to expand Weingarten rights to employees not covered by a collective

bargaining agreement. Under the Bush Board rule, nonunion employers have the right to exclude third parties from disciplinary sessions. Nonunion employers may still lawfully implement and enforce such a policy against third-party attendance at employee/management sessions. But if an employee in a nonunion work environment requests that a coworker be present at a disciplinary meeting, a nonunion employer may elect to grant that request, realizing that although no such right exists today, nonunion employees may regain that right. NLRB decisions are typically given retroactive effect. Yet the fact that President Obama has been in office for six years and the Weingarten rule, as interpreted by the Bush Board, is still limited to employees subject to collective bargaining agreements suggests that nonunion employers may escape the reversal of this precedent, at least until a new President is elected in 2016. Helpful Hint: If a nonunion employer is disciplining someone in the context of a union-organizing campaign and the employee asks to have a coworker

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present as a witness at the session, the employer may want to grant that request so that the employer does not become the test case to overturn the present limitation of Weingarten rights to nonunion employees. That is precisely the scenario under which an employer could count on a union's filing a successful unfair-labor-practice charge, at least under the current Board. C. Micro-units. In its 2011 Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011) decision, the NLRB opened the door for unions to seek to represent fractured units of employees rather than traditional wall-to-wall (companywide)

• units. Although Specialty Healthcare arose in the healthcare setting, most NLRB watchers

expected reasoning of the decision to migrate to other types of employers. That has certainly proved to be the case. Two recent NLRB decisions show how far the NLRB is willing to extend the “micro-unit” concept, but also provide some insight as to how employers may be able to mitigate the risk. In Macy’s, Inc., 361 NLRB No. 4 (2014), the Board approved a bargaining unit consisting only of cosmetics and fragrance employees—who are located on two different floors—and excluding all other salespeople. The Board found this splintered group appropriate, even though all salespeople at the store are subject to the same policies, same benefits plans, same staffing patterns, same employee entrances, same time clocks, same break rooms, and same dispute-resolution program. They attend the same daily meetings and receive the same performance evaluations, and sales employees have transferred in and out of the cosmetics and fragrance departments to other departments. Despite this, the Board found the unit appropriate because, in large part, the employer

• rganized these employees along departmental lines.

Only days later, in another case, Neiman Marcus Group, Inc., 361 NLRB

• No. 11 (2014) (“Bergdorf Goodman”), the full five-member Board unanimously rejected a

regional director’s decision ordering an election among the petitioned-for bargaining unit

• f all women’s shoe sales employees at a retail store, comprising “Salon Shoes and

Contemporary Shoes.” The Board found that the petitioned-for unit is not appropriate because, although the women’s shoe sales associates in the store’s separate departments of Salon Shoes and Contemporary Shoes are a readily identifiable group, they do not share a community of interest. Women’s shoe sales associates in Salon Shoes and Contemporary Shoes do not track any administrative or operational boundaries drawn by the employer, do not share common supervision, do not interchange with one another on either a temporary

• r a permanent basis, do not have significant contact with one another, and do not share

any specialized skills or training. The difference in outcomes lies with the significance that the Board placed

• n how the respective employers organized their employees for administrative purposes.

The Board found that the unit of cosmetics and fragrances employees in Macy’s conformed to the departmental lines established by the employer, i.e., the cosmetics and fragrances employees were all in the same department, and they also shared other sufficient

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community-of-interest factors. By contrast, in Bergdorf Goodman the Board found that the women’s shoe employees were housed in two different departments and did not share other community-of-interest indicia sufficient to offset that fact. The lesson for employers is not that the Board is retreating from Specialty Healthcare, but that the Board applied Specialty Healthcare with particular emphasis on the way in which each employer grouped its employees for administrative and

• rganizational purposes. This factor will be weighed heavily with other

community-of-interest factors, and may be the key factor in any given case. Taken together, the Macy’s and Bergdorf Goodman decisions establish that the critical factors in the NLRB’s bargaining-unit analysis are whether separate groups of employees have common supervision and have common or overlapping job duties as well as the degree of interchange between departments or job classifications. Depending on the particular operation or industry, employers should consider combining job classifications, cross-training employees in multiple job duties, and rotating employees among classifications or jobs. Employers should make an individualized risk assessment and consider such operational and structural changes based on practical considerations unique to their businesses. D. Watch for changes in NLRB joint-employer standard. In May 2014, the NLRB invited interested parties to submit amicus briefs in Browning-Ferris Industries of California, Inc., NLRB Case No. 32-RL-109684, a case involving the routine application of the Board’s decades-old standard for determining whether two or more businesses may be found to be “joint employers.” Under the existing standard, two or more employers must “share or co-determine matters governing essential terms and conditions of employment.” Predictably, unions and their allies submitted briefs proposing that a much broader standard be adopted. The Board’s general counsel’s brief argued that the Board should abandon its current joint-employer standard in favor of an amorphous “totality of the circumstances” test. Then on July 29, 2014, the same general counsel announced that he has decided to pursue unfair-labor-practice charges against both McDonald’s and several of its franchise owners. The charges allege retaliation—such as firings and other punishments— because of employees’ labor activities. As soon as this decision was made public, the blogosphere began to light up with headlines to the effect that the NLRB itself had decided that McDonald’s is a joint employer with its franchisees. That is definitely not the case. No binding legal ruling has been made. The general counsel is a labor law equivalent of a prosecuting attorney. In the McDonald’s situation, he has announced that he will seek to prove that McDonald’s is a joint employer with some of its franchisees. If he succeeds, McDonald’s would become jointly liable for violations of the National Labor Relations Act committed by franchisees, and the same principle could apply to other franchise relationships as well. The general counsel’s opinions, however, have no legal

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impact whatsoever, unless and until the NLRB agrees with him. Even then, any such NLRB decision would have to survive likely court challenges. Even if the NLRB were to ultimately issue a decision that McDonald’s is a joint employer with one or more of its franchisees, it is important to note that this would not authorize union elections across the franchise. Current NLRB decisions require both joint employers to agree before their joint employees may be grouped together to vote on union representation. Joint employers may be jointly liable for violations of the National Labor Relations Act, but their joint employees may not be grouped together for purposes of union representation without both employers’ consent. Whether a particular franchisor will be treated as a joint employer with its franchisees will depend on that specific franchise relationship. The more influence a franchisor has over the employment practices of the franchisee, the greater the likelihood that the franchisor will be found to be a joint employer with the franchisee. While the NLRB process is proceeding, prudent franchisors should review their policies, practices, and documents regarding the degree of direct and indirect control they exercise over the working conditions of their franchisees’ employees. Among the things that franchisors should not be involved in are hiring, disciplining, or terminating franchisees’ employees; supervising or controlling those employees’ work schedules or conditions of employment; determining rates or methods of payment; monitoring those employees’ performance; or exercising control over franchisees’ timekeeping or payroll

• practices. If a franchisor is able to show that it does not exercise control beyond what is

necessary to protect its product or brand, it will have a better argument that it is not a joint employer.

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