By James L. Curtis, Craig B. Simonsen, and Ronald J. Kramer
The International Franchise Association (IFA) has filed a Freedom of Information Act (FOIA) request with the Occupational Safety & Health Administration (OSHA) asking for the rationale behind questions that its inspectors are asking franchise owners, which appear designed to establish joint employer relationship between franchisors and local franchisee small business owners.
The FOIA request is extensive, spanning four pages of detailed document requests. For instance, the IFA FOIA request asks for correspondence between the U.S. Department of Labor (DOL) and OSHA officials, the National Labor Relations Board (NLRB), and the Service Employees International Union (SEIU), which the IFA alleges has been engaged in a three year, $50 million corporate campaign (“Fight for 15”) to destroy the legal separation between franchise businesses and to grow union membership.
OSHA’S questions appear to go hand-in-hand with the NLRB’s recent Browning-Ferris decision. In a blog about it in our Employer Labor Relations Blog we note that the NLRB with its decision has “refined its standard for determining joint-employer status. The revised standard is designed ‘to better effectuate the purposes of the Act in the current economic landscape.’ With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances.”
In light of the NLRB’s stunning new interpretation, IFA Vice President of Government Relations, Public Policy & Counsel, Elizabeth Taylor, says that “the Labor Department is conducting a witch hunt that, at a minimum, exceeds the statutory authority afforded to the OSHA by Congress. At worst it is engaged in a conspiracy to destroy the franchise model in cooperation with the Service Employees International Union and the supposedly-independent unelected bureaucrats at the National Labor Relations Board and its General Counsel.”
The FOIA request indicates that IFA members have reported that OSHA investigators have been requesting extensive documentation during investigations that far exceed normal OSHA procedure, and exceed the statutory authority of OSHA. OSHA, IFA believes, has done so at the direction of the DOL. Some of the requests are for documents detailing the business relationship between the franchisor and the franchisee and have nothing to do with the franchisors direct involvement in the safety issues at local restaurants.
These questions appear to suggest OSHA may already be pursuing the expanded definition of joint employer, as it applies to the franchisor/franchisee relationship, put forth in the Browning-Ferris decision.