Law in Contemporary Society

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PatrickMarrisFirstEssay 6 - 08 Apr 2018 - Main.EbenMoglen
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 With the NLRB and Congress working diligently for the interests of McDonald's, Walmart, and other mega-corporations and with a wildly anti-worker president, even in the event the Save Local Business Act is never enacted, the future for workers at low-wage franchises is not certain. But with the current landscape and political realignment imminent, that future is bleak.
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The most important route to improvement here is a legal clarification.

You should explain that "joint employer" here covers the structural fundamental of franchising. The issue is whether for purposes of the federal labor law, franchisees are the employers of the people who work in franchised businesses. The traditional rule is the one that follows the intended design of the franchise model from the franchisor's point of view. Where the other forms of legal relationship follow the model (so that for purposes of incorporation, taxation, insurance, and dozens of other legal regimes, the franchisee is an independent business having complex and interwoven contractual relations with the franchisor, unless the franchisor chooses to acquire and operate that business) NLRB in 2015 chose for the first time to pierce the architectural pattern, and use "joint employment" as a concept with reach to reach the franchisor under the NLRA.

This may be ultimately the right decision. It's attractive social policy, for all the reasons you give. The argument is strong that it lies within the statutory powers Congress enacted. But it is hardly surprising that the pushback is substantial, and that with the Republican Party in full control of Congress and the White House, there's legislation. But it can't get enacted in the Senate, for sure, so the matter revolves in the partisan gravitation of the NLRB.

If you give more attention to the legal and political economy context of franchising, the next draft, wherever you bring it out from a policy point of view, will necessarily be in closer touch with the complexities.

 
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.

Revision 6r6 - 08 Apr 2018 - 19:55:45 - EbenMoglen
Revision 5r5 - 07 Apr 2018 - 17:39:55 - PatrickMarris
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