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Fall 2014 Issue
up repeat willful violations throughout a company’s entire network
of franchisees. Second, it could create an open area for OSHA to
publicly expose what it considers to be “bad corporate actors” – a
“public humiliation” enforcement strategy that OSHA Chief David
Michaels has publicly endorsed.
Under current OSHA law, only the party in direct control of the
workplace and the employees at that workplace are typically held
responsible for keeping the workplace safe and complying with
OSHA’s regulations. Adam Finkel, OSHA’s former director, has
publicly commented on the “micromanaging” undertaken by large
franchisors with respect to their franchisees, enforcing everything
from profit margins expected each month to number of sesame
seeds placed on each bun. It is precisely this “micromanaging” that
should, according to Finkel, cause OSHA to treat McDonalds USA,
LLC as a joint employer with its franchisees.
Time and further developments will be telling in terms of whether
OSHA follows the NLRB’s pushing of the employment envelope.
In addition to this declaration, the NLRB also recently announced
that, as part of its inspection protocols, it has instructed its field
agents to also take note of “plain view” violations of the federal
Fair Labor Standards Act and Occupational Safety and Health Act.
When witnessed, the NLRB Board has instructed its field agents
to make appropriate, investigatory contact with the United States
Department of Labor (DOL) for potential wage-hour violations, and
with the Occupational Safety and Health Administration (OSHA) for
possible safety-related violations.
This newly-adopted policy of the NLRB Board is unprecedented and
by its application exposes restaurant franchisees and independent
restaurants with greater government scrutiny and the possibility
of having to defend their businesses against multiple government
agencies where those agencies themselves have not witnessed,
or even heard of, any potential violations under their respective
work jurisdictions. The newly announced NLRB policy warrants
restaurants and franchisees to undertake wage/hour audits and
safety audits to ensure that all is in proper order given the heightened
scrutiny they will now be under.
This article was provided to the Ohio Restaurant Association (ORA) for use
by ORA Purveyor Member Kastner, Westman & Wilkins, LLC. (KW&W). The
company is committed to helping companies build the solid foundations they
need for effective human resources management. KW&W’s practice is limited
to representing management exclusively in the full range of workplace issues
– labor and employment law, workers’ compensation, employee benefits and
human resources consulting.
