Let me start with the obvious: the Browning Ferris decision is terrible. Blurring the already very blurry line between an employee and a contractor is bad for businesses and bad for working people. Contractors like temporary employees or outsourced non-essential tasks play an incredibly important role in our economy. They are efficient and because of that they are cheaper and often more expert than employees. They give employers a lot of flexibility, allowing them to staff up with little cost or risk, meaning more people have jobs. Does this structure get abused sometimes? Sure. But wiping out a huge swath of the economy to manage these exceptions is exceedingly dumb. That said, let me also say this: I don’t think the sky is falling after BFI. A lot of the fears being discussed aren’t warranted. I also think there are a lot of unintended consequences that the unions and the NLRB didn’t really think about when pushing for this outcome. Unions may very well live to regret this change in the law. BFI definitely makes some things easier for unions. There are some really interesting things unions can do with the new tool right away. For example, what about the temporary employees working alongside existing bargaining units. Can they be accreted into the standing unit? Salting just got easier too. Unions have used temporary firms to bring salts into companies for years, but after this decision there’s at least a fighting chance that the temporary unit could actually vote in the election. Cases like these may provide unions some small wins over the next several years. At least until a less outcome-oriented court of appeals gets a look at this rewrite of the independent contractor rules we’ve lived with for, oh, forever. However, I don’t think organizing all the McDonald’s employees in America is a likely outcome of the BFI decision (or a future McDonald’s decision for that matter). I get why the fast food franchisors hate this ruling, and they definitely need to hold the line on the legal separation between franchisor and franchisee for their business model – a model that is absolutely vital to the American economy and millions of jobs by the way. But I don’t think there is a legitimate fear that all these restaurants are now ripe for organizing. Even if BFI or a future McDonald’s decision made franchisees joint employers with franchisors, it doesn’t change the facts on the ground. Fast food restaurants are exceedingly hard to organize. And what do you do with one if you actually win an election? It’s like the dog who chases the truck every morning and finally catches it. The economics of organizing fast food will never foot. The servicing costs of these units will overwhelm any potential dues income. The positive PR unions get by organizing these units will be overwhelmed by the negative PR of the actual contracts they negotiate (assuming they can even get a contract). These are tiny units with zero leverage and they always will be. Unless a union gets McDonald’s the franchisor to roll over (not happening) organizing these stores will be a disaster.
