Recently, we lauded the Department of Labor’s return to the control test of joint employment. Perhaps presciently, we wondered whether the NLRB would follow the same course.

The latest turn in the NLRB case involving McDonald’s and the “Fight for $15” group should give us the answer to that question – but not just yet. The McDonald’s case, you may recall, represents the last vestige of the Obama administration’s expansive view of joint employment. The Fight group, backed by the Service Employees International Union, filed an action in the NLRB seeking, among other things, a finding that McDonald’s is the joint employer of its franchisees’ employees.

In December, the NLRB order the ALJ to accept a settlement in the case that included back pay, but crucially, excluded any finding of joint employment. But wait!, screamed the Fight group, two of the NLRB members should have recused themselves from the decision. The group filed a motion to reopen the case and for reconsideration. That led to the ALJ’s action, on January 23, holding approval of the settlement “in abeyance” pending Board action on the Fight group’s motion.

In other words, the book isn’t closed in the NLRB . . . yet.

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