The National Labor Relations Board (NLRB) has released its final joint employer rule, broadening the conditions under which two businesses might be considered jointly liable for legal issues or organizing campaigns. This rule does not only impact the franchise restaurant model but will also impact all restaurants that contract for services like cleaning or lawn care.  The National Restaurant Association and the Wisconsin Restaurant Association strongly oppose the NLRB’s final rule.

NOTE: In late November, the effective date was changed from December 26, 2023 to February 26, 2024. Click here for more info on the date change.  

History Revisited
Previously, joint employer status was largely contingent on an entity's “direct and immediate control” over the key terms of another organization's employees. The 2020 Final Rule provided clear boundaries, granting certainty to industry participants.
 
What’s New
The NLRB's latest update expands the joint employer standard. Now, entities can be jointly classified by "sharing or co-determining" essential aspects of employment terms. This change encompasses both indirect influences and reserved controls. Entities identified as joint employers are obligated to participate in collective bargaining with the union representing their shared employees. Furthermore, they're potentially liable for each other's unfair labor practices and become vulnerable to union pressures in the event of labor disputes.
 
Expanding the Scope
The implications of the rule aren't confined to explicit, direct relationships. Circumstances where an entity impacts another’s employees through intermediaries or merely possesses (but does not exercise) control over employment conditions can now indicate a joint employer dynamic.
 
Who’s Affected?
The franchise business model is squarely in the crosshairs. While the 2020 Final Rule, under the "direct and immediate" standard, provided a conducive environment for the industry to flourish, the current iteration neglects the industry's concerns. In the National Restaurant Association and Restaurant Law Center’s (RLC) comments to the proposed rule, they emphasized that, at the very least, the rule should clarify that it does not encompass franchise agreements or other clauses tied to legitimate business reasons, such as brand maintenance and product quality. Regrettably, our suggestions weren't heeded.
 
Bigger Picture
This is not just a minor regulatory adjustment; it's a foundational change. The rule's lack of clarity could spur extensive legal challenges and increased liability risks. Amid these unprecedented challenges, the National Restaurant Association and RLC are exploring all avenues, including potential legislative and legal actions, to restore a practical standard.
 
More Information
Littler-Mendelsohn Assessment of Final Rule
​National Restaurant Association Statement on the 2023 Joint Employer Final Rule
NLRB Final Rule: Standard for Determining Joint Employer Status
NLRB FACT SHEET Joint-Employer Standard Final Rule

The WRA's Third Party Delivery Consent bill (AB 294/SB 290) unanimously passed both the Wisconsin Senate and Assembly on Tuesday, October 17! The bill is now available for the Governor to sign. WRA staff has met with the Governor's policy team encouraging him to sign the bill as soon as it is available.
 
At the request of the WRA, Senator Pat Testin and Representative Alex Dallman introduced these bills to curb third party delivery company business practices that emerged during the pandemic that are harmful and costly to restaurants. 

This bill ensures:

• A third-party food delivery service shall not list a restaurant’s name, address or logo without consent.
• Food delivery service drivers will have knowledge of basic food safety principles.
• Third-party delivery services will be required to share data with the restaurant about the content of orders and the times that orders are placed.
• Progressive fines for companies that do not abide by the law, which are enforced by the Department of Agriculture, Trade and Consumer Protection (DATCP). This is a key component for our independent restaurant owners. Allowing them to register a complaint with DATCP, rather than retain a lawyer, is crucial in helping them protect their brand and their business and not be bogged down in small claims court.

An amendment has also been added that defines the term "consent" and requires third party companies to provide a receipt when a restaurant requests removal from its site/app.
 
For more information on this bill and WRA’s legislative priorities, please email Susan Quam.

The Wisconsin tourism public relations team is looking to gather information on unique culinary offerings in Wisconsin. 

Please share information on any of the following:

• Culinary/restaurant events in January or February of 2024 (can be a recurring event)
• Restaurant openings or renovations (January - February)
• Only in Wisconsin: do you export a specific ingredient or food? Are you headquartered in Wisconsin? Do you source your food from a Wisconsin farm?
• Experiential dining: do you have a unique guest experience offered at your restaurant?

If you have information on any noteworthy culinary offerings that are not directly related to the above bullet points, feel free to still pass that along. 

Email your submission to the Wisconsin Tourism PR team directly at [email protected] with the subject line "Request for Information: Unique Culinary Offerings" 
 
The email must be received by 5 PM (CST) Friday, October 20th to be considered for this opportunity. 

When submitting, please indicate: 

• Your name
• Name of the destination, experience, or business you're representing w/ link to website
• 2-3 sentences about your offering or business (call out any details particularly relevant to the months of January and February)
• Link to relevant photos

All deadlines are final. There are no costs involved with editorial opportunities, however, inclusion is not guaranteed.  
​