- Whether the memo may be used as a blueprint for all franchise systems notwithstanding the joint employer standard established in Browning-Ferris; and
- "How much flexibility will franchisors have to implement, articulate, and enforce brand standards before they are deemed to cross the line into the forbidden areas of 'indirect,' 'unexercised,' or 'potential' control for joint employer purposes?"
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Authors: D. Mark Wilson
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This week, 13 House Democrats asked the National Labor Relations Board to clarify its position on the joint employer issue regarding franchisors—which also has significant implications for contractor-subcontractor relationships. The insurance of the letter suggests there could be bipartisan support for legislation to address the issue. The letter asked about a 2015 Associate General Counsel memo, which said a franchisor was not a joint employer of workers at one of its franchise locations that came out just four months before the Board's Browning-Ferris decision, which greatly expanded the joint employer test under the NLRA. Specifically, the letter asked the NLRB to clarify:
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