Recently, an employment discrimination lawsuit was filed against both McDonald's and the individual franchise where the employee worked.

McDonald's maintains that workers, including the filer of this lawsuit, are not its employees--that the workers are employees of the franchisee. While this distinction will likely be argued in court, current case law provides some guidance. 

In the franchise / franchisee context, the analysis tends to apply the concept of common law "agency" and the "control". Courts use a hybrid test that "... examines the economic realities of the relationship but [also] considers ‘the extent of the employer's right to control the means and manner of the worker's performance’ as the most important factor." See Hatcher v. Augustus, 956 F. Supp. 387, 390 (E.D.N.Y. 1997).

Significantly,  in another case involving McDonald's, Evans v. McDonald's Corp., 936 F.2d 1087 (10th Cir.1991) it was recognized that a franchisor is not the employer of employees of the franchisee.  The Plaintiff(s) will have to get creative to overcome these decisions already on the books.