Last week’s filing of seven lawsuits against McDonald’s Corp. and several of its franchisees threatened the industry titan with “vicarious liability” for the alleged wrongdoing of its owner-operators, which large restaurant franchisors have faced before, attorneys said.

However, in the lawsuits brought by McDonald’s employees against the brand and its licensees in California, Michigan and New York, the plaintiffs seek to characterize Oak Brook, Ill.-based McDonald’s Corp. as their “joint employer,” which could mean “the ramifications are far more significant,” and that McDonald’s and other brands must be more proactive, said Rochelle Spandorf, a Los Angeles-based partner with law firm Davis Wright Tremaine LLP.

If the plaintiffs in these cases prevail, or if joint-employer language shows up in future claims, franchisors could deal with not only increased liability, but also more difficulty sharing best practices with their franchisees, Spandorf added.

Previously, during a presentation at the International Franchise Association Convention in New Orleans in February, Dennis Wieczorek of the law firm DLA Piper called the move to classify franchisors as joint employers “the biggest danger to franchising right now,” citing a previous case about McDonald’s that appeared before the National Labor Relations Board earlier this year.

McDonald's employees accused the company of wage theft in seven cases“There is clearly a trend,” Wieczorek said during his presentation. “The people who have been appointed to the Department of Labor are clearly from a union background, and their view is that franchising is a ‘fissured industry,’ meaning that the franchisor and its entire system should be viewed as one employment unit. … We’re going to be hearing a lot more about that.”

Spandorf and Wieczorek offer advice on how restaurant franchisors could protect themselves from similar threats of vicarious liability, including joint-employer claims.

Stay out of hiring, firing and discipline

What makes vicarious liability cases so expensive to defend and hard to dismiss with pretrial motions is that they are so fact-intensive, requiring lengthy discovery periods to read through all documents exchanged between the franchisor and franchisee, Spandorf said. As such, it is best not to put any advice on employment practices down on paper, she said.

“My advice is to stay out of the whole subject of hiring, firing, disciplining and establishment of employment policy,” she said.

Wieczorek added that franchisors should avoid the topic of employment practices with their owner-operators in emails or meetings with support staff as well.

“I would advise brands to pull out of that area and don’t even talk about it,” he said. “It can only get you into trouble.”