9th Circuit won’t hear wage theft allegations against McDonald’s en banc

The 9th U.S. Circuit Court of Appeals denied en banc consideration Wednesday to rehear a case accusing McDonald's Corp. of wage theft, reaffirming the court's earlier ruling the fast-food chain was not responsible for violations committed by a franchisee.

Two of the three original panel judges -- Circuit Judges Susan P. Garber and Andrew J. Kleinfeld -- denied the appellant's request for en banc but amended their previous ruling, according to the published order. No other judge requested a vote.

In the amended opinion, Garber wrote the previous panel "correctly concluded that McDonald's did not meet the 'suffer or permit' definition of employer" and could not be classified as an employer of its franchisee's workers.

Garber also wrote that while McDonald's was likely aware that the franchisee, the Oakland-based Haynes Family Limited Partnership, was violating state wage-and-hour laws, "there was no evidence that McDonald's had the requisite level of control over plaintiffs' employment" to classify the company as a joint employer. Salazar v. McDonald's Corp., 17-15673 (9th Cir., filed Dec. 11, 2019).

Again concurring and dissenting in part, Chief Judge Sidney R. Thomas wrote McDonald's met the joint employer criteria and contributed to violations via its payroll system. The franchisees were unable to reprogram the system's software to account for overtime and meal breaks, thereby causing the violations, wrote Thomas, who also voted to grant en banc.

The franchisee group settled with the plaintiffs prior to the summary judgment for McDonald's in district court, records show.

-- Glenn Jeffers