Worcester Business Journal

www.wbjournal.com October 12, 2015 • Worcester Business Journal 9 "We're not a shell for our franchiser," he said. "My employees have an employ- er. They know who we are." To unions, the ruling gives more leverage to employees who have been held at arm's length by the companies that benefit from their labor. "Many employers are creating inter- mediaries that put workers in a more precarious situation," said Marcy Goldstein-Gelb, executive director of the union-affiliated Massachusetts Coalition for Occupational Safety and Health. Goldstein-Gelb said situations where it's not clear who the real employer is can make it hard for employees to speak up about mistreatment or dangerous condi- tions. "Workers need to be able to collec- tively take action," she said. "They need to be protected from retaliation." Goldstein-Gelb said some employers use staffing agencies to avoid their responsibilities under labor law. For example, a company might have an agency pay workers for 40 hours per week and then have them work addi- tional hours, technically for a different employer, to avoid paying overtime. She said the NLRB recognition of the contracting company as a joint employer could help curb such abuses. Stephen Dwyer, general counsel of the American Staffing Association, said the ruling isn't going to lead to a rush to increased labor organization, as previ- ous NLRB rulings that made unioniza- tion easier did not actually result in more employees joining unions. Ed Shanahan – executive director of franchisees association Dunkin' Donuts Independent Franchise Owners Inc., said he doesn't see workers at the fast food places clamoring to unionize. "Some people see forming the union is not what it's cracked up to be," he said. Shanahan said unionization isn't his only worry when it comes to the Browning-Ferris decision, as workers might be more likely to take legal action against their employers if they knew the case would involve a big, deep-pocketed company rather than just a local owner. He cited a case where a woman sued after falling and burning herself with coffee she was carrying. "If that were an employee who slipped and fell, if you've got joint employers, both will be liable," Shanahan said. "When you're talking about the negative aspects of a joint employer type ruling then, in this litigious society, that's where the rubber meets the road." Branca said he would buy more liabil- ity insurance to protect his business from that kind of threat because of an indemnification clause in his franchise agreement that makes him responsible if his shops end up costing Dunkin' Donuts money. Branca worries about the legal confu- sion the ruling could create. If Dunkin' Donuts employees were to unionize, he said it's not clear how the various fran- chise owners and the larger corporation could work together to bargain con- tracts. Branca traveled to Washington, D.C. with the International Franchise Association to lobby for a bill that would partly roll back the NLRB decision, say- ing two companies can be joint employ- ers only if they both exercise actual, direct control over workers. The NLRB is poised to issue a ruling concerning McDonald's that would clar- ify how its definition of joint employers applies to franchises. On the state level, Massachusetts law- makers have filed a bill that would echo the NLRB decision, enshrining an expanded definition of "employer" into law that would include anyone "acting directly or indirectly in the interest of an employer in relation to an employee." n Christina P. O'Neill contributed to this story. Who's the boss? 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