Article is First 'Scholarly' Blast at NLRB on Joint Employer
David Kaufmann, Kaufmann Gildin & Robbins, is co-author of the article.
A new Franchise Law Journal article minces no words when criticizing the National Labor Relations Board for its claim that McDonald’s is the “joint employer” of its franchisees’ staff.
The assertion “is contradicted by virtually the entirety of judicial precedent addressing the subject; the legal definitions of ‘franchise’ under federal and state law…; the Lanham Act and its requirements; the norms, structures and paradigms of franchising,” and much more, said the article, authored by attorneys at Kaufmann Gildin & Robbins, the New York law firm.
If adopted by the NLRB and upheld by the judiciary, “this change would cripple or even eradicate franchising as we know it,” the article continued. David Kaufmann, Felicia Soler, Breton Permesly and Dale Cohen are the authors.
The article is meant to take a strong stand, especially in contrast to what name partner David Kaufmann calls “a wealth of left-leaning academic journals entirely supportive of the NLRB General Counsel’s approach.”
“If you perceive our article to be particularly aggressive, comprehensive and combative, well, that is no coincidence,” he wrote in a letter introducing the article. “This article is meant to be invoked by McDonald’s and all other franchisors confronting ‘joint employer’ allegations.”
After the NLRB’s ruling last July, Kaufmann wrote, a number of large clients “contacted us expressing dismay or concern that there was not a single serious scholarly work out there which in any fashion sought to challenge and defeat” the NLRB’s position.
His firm sought to author the “seminal” law review article on the subject for the American Bar Association Franchise Law Journal, and devoted more than 200 hours to the project. Called “A franchisor is not the employer of its franchisees or their employees, “ it’s in the Spring 2015 edition.