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Recent sexual harassment lawsuits against McDonald's Corp. will succeed only if a court finds that the corporation is liable for what takes place at its franchisees. Fifteen plaintiffs maintain that McDonald's Corp. is a joint employer with its franchisees and therefore liable for employment law violations that occur at its franchisees. McDonald's Corp. vigorously disputes that it is a joint employer.
The allegations filed with the Equal Employment Opportunity Commission (EEOC) claim that management ignored the employees' complaints of sexual harassment and instead retaliated against those who complained.
The complaints were filed in California, Florida, Illinois, Michigan, Missouri, New York, North Carolina and Wisconsin. Fourteen of the complaints are against franchise restaurants and only one complaint is filed against a corporate McDonald's location. The company is named in the complaints as a joint employer. The charges were filed on behalf of employees by Fight for $15, a minimum-wage movement supported by the Service Employees International Union (SEIU); all the employees are members of the movement.
Sexual Harassment Common in Fast-Food Industry
A national survey by Hart Research Associates found that 40 percent of women employed in the fast-food industry have experienced unwanted sexual attention at work, and 28 percent reported multiple forms of harassment.
The most common types of harassment, according to the report, are unwanted sexual teasing, jokes, remarks or questions (27 percent); unwanted hugging or touching (26 percent); and unwanted questions about sexual interests (20 percent). Two percent report being sexually assaulted or raped on the job. Many of the complaints filed against McDonald's mirror the types of harassment in the survey.
In her EEOC charge, Kristi Maisenbach, a former Folsom, Calif., McDonald's employee, said she complained to her manager about his ongoing harassment, including a text message offering her $1,000 for oral sex. In response, her manager said she shouldn't have "flirted" with him. Afterward, the manager cut her hours from 30 per week to eight per week.
Andrew McConnell of Kansas City, Mo., said he was terminated after repeated harassment based on his sexual orientation. According to his complaint, on one occasion his store manager told McConnell to "Get away from me, you faggot."
A former Flint, Mich., McDonald's worker, filed a complaint alleging that her supervisor rubbed his genitals against her, commented on her body and told her that he wanted to "do things" to her. She stated that she reported the supervisor's behavior to both her restaurant manager and McDonald's corporate office.
"McDonald's monitors everything we do—from how fast the drive-thru is moving, to how we fold our customers' bags," she said. "Yet when I filed a complaint against my shift manager for regularly sexually harassing me—which included him showing me a photo of his genitals—McDonald's had no response."
Efforts to Make Franchises Joint Employers
McDonald's has been the target of union efforts to have the company and its franchisees declared joint employers. The Fight for $15 movement originally was started by SEIU to push for higher minimum wages and unionization at fast-food restaurants. The group has held strikes for higher wages in multiple cities. The strikes triggered hundreds of claims of unfair labor practice alleging that workers involved in the concerted action were punished for their pro-labor activities.
In December 2014, the National Labor Relations Board (NLRB) issued 13 consolidated complaints against McDonald's and several franchisees alleging they retaliated against employees using threats, surveillance, reduction of work hours, interrogations and terminations. An NLRB administrative law judge held a hearing in March 2016 to determine if the corporation could be held jointly liable for the 2014 retaliation claims. McDonald's argued at the hearing that it is not a joint employer; the administrative law judge has not yet reached a determination.
In a separate action, a court allowed a claim that McDonald's is a joint employer advance beyond a motion for summary judgment (Salazar v. McDonald's Corp., N.D. Cal., 14-cv-02096-RS (2016)).
Donna Ballman, a Fort Lauderdale, Fla., attorney who represents employees, says that these incidents are a good example of why parent companies must be held accountable for the acts of their franchisees. "Until recently," Ballman said, "those big companies twiddled their thumbs and let stuff like this happen, ignoring complaints and assuming they were bulletproof. Now that attitude may come back to bite them, as well it should." Ballman said that franchisors, like McDonald's, need to rethink their policies and crack down on any "frat house atmosphere" in their franchisees' workplaces.
Jon Hyman, a partner at Meyers, Roman, Friedberg & Lewis in Cleveland, disagrees. "It goes without saying that the described conduct is reprehensible and no employee should be expected to tolerate such abuse at work," Hyman said. "The bigger question, however, is who should be responsible? The actual employer or the franchisor that licenses its name, trademarks, recipes, etc., to a local franchise owner?"
Hyman said that the NLRB in its Browning-Ferris ruling tried to change the game on franchise liability, with the EEOC and other agencies jumping on board. "There is nothing good for businesses about this expansion of the definition of 'joint employment,' " Hyman said. "If franchisors stand in the shoes of their franchisees in all cases under the law, then we will likely see the end of franchises as viable business models. No franchisor will want to assume the risk of employment practices over which they have no control."
According to the company's operations and training manual, "McDonald's has zero tolerance for any form of sexual harassment of any employee." It continues, "Sexual harassment is prohibited because it may be intimidating, an abuse of power and is inconsistent with McDonald's policies and management philosophy."
The company is reviewing the allegations, McDonald's spokesperson Terri Hickey said in a statement. "We take any concerns seriously." But it's the franchisees that would be liable if there were employment law violations, not the umbrella McDonald's Corp., if McDonald's Corp. is correct that it is not a joint employer with its franchisees.
Hickey added, "At McDonald's, we and our independent owner-operators share a deep commitment to the respectful treatment of everyone. There is no place for harassment and discrimination of any kind in McDonald's restaurants or in any workplace."
Robert Teachout, SHRM-SCP, is a writer in Washington, D.C., who covers employment law and HR issues.
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