Virtually all of the workplace protections and rights that Americans enjoy were secured during a very different economic age. Erected during the New Deal era, the edifice of American labor law has suffered significant erosion — and only modest renovations — over the past half-century. One consequence of this reality is that our labor laws are designed to protect the “typical” (i.e. white, male) worker of the mid-20th century — the full-time employee of a large corporation — even as such workers have become increasingly atypical in the economy of today.
These two facts are related. The longer labor laws stand still, the better corporations get maneuvering around them. In recent years, American companies have become increasingly adept at minimizing the number of workers directly beneath their roofs. Instead of taking on new employees — entitled to health care, disability, and collective bargaining rights — corporations have figured out how to satisfy their labor needs through contractors, staffing firms, and franchises.
In 2015, the Democratic-controlled National Labor Relations Board (NLRB) decided to nudge labor law into closer alignment with this new reality.
At the time, a national chain (like McDonald’s) was only considered the “joint-employer” of workers at its independently owned franchises if the larger corporation exercised “direct and immediate” control over those workers. This rule had three major — and majorly negative — implications for America’s fast food workers:
1) It made it impossible for the workers at any given McDonald’s (or other major chain) franchise to sue the deep-pocketed parent company for labor-law violations they suffered on the job.
2) It made it very difficult for such workers to secure wage and benefit gains through collective bargaining. Often, franchisees have relatively low profit margins, and, thus, limited ability to make concessions to their employees. McDonald’s, on the other hand, has plenty of room to fatten their workers’ paychecks while staying in the black. (And if it were considered a “joint employer” of workers at its franchises, those workers could collectively bargain with McDonald’s, itself.)
3) It made it much harder for franchise workers to unionize in the first place. Employers are not allowed to retaliate against workers for forming a union. But a company is free to end a relationship with a franchise if it suspects its workers are about to form a bargaining unit.
Given these facts — and the growing share of the American working class that performs service labor at franchises — the Obama-era NLRB decided to redefine what it meant to be a “joint-employer.” In light of “changing economic circumstances, particularly the recent dramatic growth in contingent employment relationships,” the labor board ruled that if a company exercised indirect control of workers at its franchises — say, by requiring them to use “just-in-time scheduling” software — then it was, in fact, a joint-employer of those workers.
America’s “forgotten men and women” applauded this decision. Their (new) bosses hated it.
You’ll never guess whose side the Trump administration took.
This week, both of Trump’s appointees to the labor board voted to reverse the Obama-era decision, in a 3-to-2 ruling that reestablished the “direct control” standard.
Democrats condemned the decision.
“This shocking and brazen decision to overturn pro-worker precedent is further proof the Trump administration will stop at nothing to line the pockets of corporations — no matter what price workers and their families are forced to pay,” Washington senator Patty Murray said in a statement.
Wisconsin congressman Mark Pocan voiced similar sentiments on Twitter.
McDonald’s has faced multiple lawsuits from workers seeking to hold it liable for labor-law violations at its franchises this year. The NLRB’s decision all but guarantees that the company will evade responsibility in all of those cases.
“Five, ten years from now — different party,” Donald Trump told Bloomberg Businessweek in 2016, explaining how he would change the GOP. “You’re going to have a worker’s party.”
One year from then, the Republicans remain a party for bosses.