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Reality check: When is a franchisor a joint employer of franchisee employees?

August 29th, 2017  |  Lorene Park  |  Add a Comment

By Lorene D. Park, J.D.

The increase in court battles over franchisors’ liability as “joint employers” when franchisees violate Title VII, the Fair Labor Standards Act, or other labor laws could reflect the ongoing search by plaintiffs for deep pockets, or increased efforts by businesses to skirt labor laws—depending on your point of view. Many believe it reflects our political divide and the uncertainty of a changing “patchwork” of tests for joint-employer status issued by courts and agencies.

Changes are coming . . . It appears lawmakers are making headway toward a uniform standard, given the July 12 hearing before the House Committee on Education and the Workforce and its introduction on July 27, 2017, of the Save Local Business Act. The Act would amend the NLRA and the FLSA to restore what the bill’s sponsors called “the commonsense definition of what it means to be an employer.” The bill (H.R. 3441), which has bipartisan support, would toss the standard articulated in the NLRB’s recent Browning-Ferris Industries decision and clarify that two or more employers must have “actual, direct, and immediate” control over employees to be considered joint employers. As we await the outcome of these efforts, and regardless of your point of view, it’s worth looking at recent court decisions on when franchisors may be liable under a joint employment theory—for the moment, at least.

First, the patchwork. To provide some context for the court decisions, it helps to understand the tests for joint employer status—they vary by statute and jurisdiction. As noted in a now-withdrawn interpretation by former WHD administrator David Weil, joint employment is defined more broadly under the FLSA and Migrant and Seasonal Agricultural Worker Protection Act (MSPA) than under the common law relied on by courts in the context of Title VII and other statutes. The common law focuses on the control a franchisor exercises over franchisee employees on a day-to-day basis, including how and where the work is done. Courts consider the terms of the franchise agreement or policies; mandatory training; mandatory recordkeeping; whether the franchisor inspects or audits; and the right to terminate, among other things.

In FLSA and MSPA cases, courts look broadly at an individual’s economic dependence on the company (the “suffer or permit to work” language), but the right to control is still important; increased control signals economic dependence. Other factors include: control of employment conditions (method of pay, power to fire); the permanency of the relationship; the skill required (little training indicates greater dependence); whether the work is integral to the business; and whether the franchisor performs administrative functions (e.g., payroll, workers’ comp, taxes).

There is also a “hybrid” test used by the Fourth and Fifth Circuits, among other courts, with respect to Title VII, ADEA, and other statutes. The hybrid test considers elements of both the common law and the economic reality tests. In the Fourth Circuit, for example, nine factors are considered, but three are most important: authority to hire and fire; day-to-day supervision and control of the putative employee; and where and how the work takes place.

Recent cases on franchisor liability. Clearly there is overlap in the various tests. Thus, while employers should focus on cases in their jurisdictions, much can be learned from other as well:

Fourth Circuit has nine factors for ADEA, six for FLSA. In one case, a federal court in Maryland found that a pizza restaurant manager sufficiently alleged that franchisor Ledo Pizza Systems was his joint employer. As to his ADEA claim that he was fired in retaliation for refusing to terminate an older worker, the court looked to the nine-factor hybrid test from the Fourth Circuit in Butler v. Drive Automotive Industries of America, Inc. The allegations suggested Ledo, acting through its corporate employee, had control over hiring and firing, day-to-day supervision, and formal or informal training. Also refusing to dismiss the FLSA retaliation claim, the court found joint employer status well-pleaded through allegations of significant ties between the franchisor and franchisee, suggesting a long-lasting relationship and control by the franchisor. The plaintiff claimed Ledo had at least some power to control and supervise workers and to hire, fire, or modify employment conditions. For example, Ledo required him to provide daily and weekly reports, told him what to stock in the bar, set employee schedules, hired a bartender, and told the plaintiff he was fired. To the court, at least the first four of the six factors set forth by the Fourth Circuit in Salinas v. Commercial Interiors, Inc., could weigh in the plaintiff’s favor (Lora v. Ledo Pizza Systems, Inc.).

Functional control indicates employer status. A federal court in New York refused to dismiss an FLSA collective action by servers, housemen, waiters, housekeepers, and other employees of a hotel franchisee who plausibly claimed the franchisor defendants asserted “functional control” over hotel staff to be liable as joint employers (formal control was not addressed). To establish functional control, they alleged the franchisor defendants: (1) imposed mandatory training programs for hotel staff; (2) maintained the right to inspect the hotel; (3) imposed mandatory recordkeeping requirements; (4) established “standards, specifications[,] and policies for construction, furnishing, operation, appearance, and service of the Hotel;” (5) required that a particular software be used to track hotel revenue and operations; (6) retained the unlimited right to change the manner in which the hotel was operated; (7) performed audits and inspections of compliance with franchisor standards; (8) maintained the right to terminate the franchise, which could cause the termination of staff; and (9) knew the plaintiffs were not paid gratuities but failed to stop the unlawful practices. To the court, this was enough to plausibly allege that the franchisor defendants were joint employers under the FLSA and NYLL (Ocampo v. 455 Hospitality LLC).

Logos and uniforms showed control over franchise, but not workers. An employee of a landscaping franchisee could not show the franchisor exercised enough control over her employment or that other factors suggested it should be held liable as a “joint employer” or “single, integrated employer” under Title VII for the alleged unlawful acts of the franchisee. She relied on the franchisor’s control over logos, uniforms, letterhead, and vehicle color, but a federal court in Virginia explained that control over the franchisee was not relevant and it was control over the plaintiff’s employment that mattered—which was lacking here. The court reviewed the nine factors set forth by the Fourth Circuit in Butler and noted that while not one factor is dispositive, the “common-law element of control remains the principal guidepost’ in the analysis.” (Wright v. Mountain View Lawn Care, LLC).

Franchisor’s training program not enough for joint employer status. In a suit by a Church’s Chicken employee in Alabama who claimed she was not paid proper minimum wages and overtime, a federal court concluded that her general assertion that two franchisors had a management role in a franchisee’s restaurant operations did not render those entities her “employer” under the FLSA. Although a franchise agreement required the franchisee to send its employees to attend a “manager training” program conducted by the franchisors, the training program alone did not turn the franchisors into the employee’s employer. The employee did not allege any facts showing that the franchisors had the power to hire or fire, or make personnel decisions, supervise work schedules, determine pay rate, or maintain records of the franchisee’s employees (Rodriguez v. America’s Favorite Chicken Co. dba Church’s Chicken).

“Ministerial functions” of payroll not enough for liability. In a suit filed under the FLSA and Oregon wage and hour law, a federal court found that Jack in the Box was not the plaintiffs’ “joint employer” after the date it franchised several corporate-owned restaurants to franchisee Northwest Group, Inc. Applying the “economic reality” factors outlined by the Ninth Circuit, the court found that Jack in the Box established that it did not have the power to hire and fire franchisee employees, and it was not involved in franchise employee work schedules, salaries, insurance, fringe benefits, or hours. Although the franchisee was required to use Jack in the Box’s payroll system, such “ministerial functions are insufficient to support plaintiffs’ argument that [defendant] controls labor relations.” Summary judgment was granted for Jack in the Box on this issue (Gessele v. Jack in the Box, Inc.).

Recommending personnel policies not enough. A window cleaning franchisor did not become a joint employer of its franchisee’s employees merely by recommending personnel policies, held a federal district court in Wisconsin, granting summary judgment in favor of the franchisor on employee wage-hour claims. To prove the franchisor was their joint employer, the employees had to show more than that they received a copy of the franchisor’s employee manual and that the franchisee followed the franchisor’s recommendation to pay them on a commission basis. The “critical issue” was that the franchisee was not obligated to follow the manual as drafted. In addition, the franchisor did not have the power to hire and fire them and did not maintain employment records for them. In sum, the court found the minimal control exerted by the franchisor here “nothing like” what would be necessary to demonstrate employer status (Pope v. Espeseth, Inc.).

Creating master franchise plan not enough absent day-to-day control. A national franchisor that created a master franchise plan for commercial cleaning businesses was not the employer of unit franchisee owners under California law, ruled a federal district court in California. The unit franchisees failed to offer any evidence of the franchisor’s actual control over their day-to-day activities, or that it reserved the right to exercise such control. Nor was there evidence that the franchisor controlled their wages or had the authority to stop them from working. Consequently, the court granted the franchisor’s motion for summary judgment (Roman v. Jan-Pro Franchising International, Inc.).

Jani-King cases. Cleaning service franchisor Jani-King is defending suits in several jurisdictions, the main dispute being whether it misclassified franchisees as independent contractors. In one, the Third Circuit affirmed that whether the franchise agreement and manuals gave Jani-King sufficient day-to-day control to make franchisees “employees” will be determined on a class-wide basis. Rule 23’s commonality and predominance requirements were met because the dispute could be resolved by common evidence, including the agreement and manuals, which put controls on franchisees including: where to solicit business, how often to communicate with customers, what to wear, what records to keep, how to advertise, and more. The documents also addressed the nature of the work, tools, and termination (Williams v. Jani-King of Philadelphia, Inc.). Jani-King did score a win in Oklahoma, though, when a DOL enforcement action was dismissed with prejudice because in claiming that all franchisees were “employees,” the agency lumped together the franchisors who were individuals and those franchised through corporate entities, which cannot be “employees” as defined by the FLSA (Acosta v. Jani-King of Oklahoma, Inc.).

Minimizing liability. These decisions suggest steps franchisors can take to decrease the chance of being liable, as a joint employer of franchisee workers, for employment law violations:

Make intent clear. Put it in the franchisor agreement that the franchisor is not the employer, does not have the power to hire, promote, or fire franchisee employees. Have franchisees state in job applications that individuals are hired by the franchisee, not the franchisor.

Stay true to franchise model. Stick to controlling product and service standards on a general level. It is okay to require the use of certain templates or to maintain the brand (e.g., logos, uniforms, letterhead, typical customer greetings, and the like), but don’t micromanage. Remember, courts look to control over an individual’s employment, not over the franchisee.

Leave HR functions to franchisees. In practice, leave to the franchisees the typical human resources and employer functions, such as: hiring/firing, wage rates, scheduling, payroll, staffing levels, performance evaluations, promotions, workers’ compensation insurance, taxes, employee complaints, discipline, and recordkeeping. To the extent template personnel policies are provided to franchisees, make clear that the policies are optional.

Train judiciously. Train your franchisee owners and managers on policies and provide resources for training, but otherwise leave training and rule enforcement to franchisees.

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Additional FY 2017 OFCCP settlements not publicized via agency press releases posted

August 24th, 2017  |  Cynthia L. Hackerott  |  Add a Comment

Three additional settlement agreements regarding which the OFCCP did not issue a corresponding press release have been posted on the agency’s Class Member Locator webpage and FOIA Reading Room) since Employment Law Daily last reported on such agreements in mid-May 2017. In all of the cases listed below, the contractor did not admit liability.

Aramark Uniform Services. As the result of a compliance review, the OFCCP concluded that, between January 1, 2012 and October 20, 2014,  manufacturer Aramark Uniform Services discriminated against 41 qualified female employees, who were placed into lower paying production positions, and, as a result subsequently, between August 22, 2012 and October 20, 2014, discriminated against 246 qualified males who were denied employment opportunities into the lower paying production positions within the “Operatives Job Group” at its Evansville, Indiana facility. Pursuant to a conciliation agreement, signed between May 5-22, 2017, the contractor agreed to pay $1,903.68 to settle the allegations of placement discrimination against female employees and $194,255.00 to resolve the hiring allegations against male applicants. Aramark will also extend 28 job opportunities and revise its placement and selection procedures.

Kappler, Inc. In a conciliation agreement, signed early to mid-May 2017, Kappler, Inc., a chemical protective clothing and accessories company, agreed to pay a total of $5,500.00 to resolve allegations of job placement discrimination at its Guntersville, Alabama facility. According to the OFCCP, from December 24, 2012 to December 24, 2014, the company discriminated against eleven qualified women who were not placed into “Cutter” or “Floor Worker” positions. Under the agreement, Kappler, Inc. will also extend two job opportunities and retroactive seniority.

Vulcan Information Packaging. Vulcan Information Packaging, a manufacturer of custom binders and promotional packages for local businesses, has agreed to pay a total of $56,000.00 to settle allegations of gender discrimination in job placement at its Vincent, Alabama facility. Between July 1, 2013 and July 1, 2015, the contractor placed 21 female employees into lower paying entry-level positions and paid these women less than similarly qualified men steered into non-entry level higher-paying positions, according to the result of an OFCCP compliance review. On top of the monetary settlement, the conciliation agreement, signed May 22-25, 2017, provides that Vulcan will revise its compensation and job placement policies and procedures.

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No absolute right to presence of union representative in investigatory hearing

August 22nd, 2017  |  Ron Miller  |  Add a Comment

It has been long held under NLRB v. J. Weingarten, Inc., that an employee must be allowed to bring a union representative to any investigatory interview she is required to attend if she reasonably believes the interview might result in disciplinary action. However, the D.C. Circuit recently reminded us that there is no absolute right to a union representative in the exercise of an employee’s Weingarten rights. In Midwest Division – MMC, LLC dba Menorah Medical Center v. NLRB, the appeals court observed that when employees are not obligated to take part in an investigatory hearing, there is no requirement that they be permitted to bring a union representative if they elect to participate. As a result, the NLRB’s determination that a hospital improperly denied the request of two nurses for union representation in peer-review-committee hearings was set aside by the appeals court.

Peer-review program. Kansas law calls for hospitals to establish an internal peer-review program to monitor the quality of care furnished by their medical professionals. As required by state law, the employer formed a peer-review committee for its nursing staff. The committee examines alleged violations of the applicable standard of care by the hospital’s nurses and reports serious breaches to the state licensing agency. The peer review committee does not itself impose any form of discipline, but reports to the appropriate licensing agency if it finds grounds for disciplinary action.

Investigation of substandard conduct. This case arose out of the peer-review committee’s investigation of two nurses for substandard conduct. In May 2012, the nurses received letters from the hospital’s risk manager alleging they had exhibited unprofessional conduct. They were reminded that a “Care Level 4″ determination must be reported to the Kansas Board of Nursing for potential disciplinary action. The nurses were afforded an opportunity to address the peer review committee if they chose. Both nurses asked to be allowed a union representative before the committee, but the employer denied the requests.

In response to the employer’s actions, the union filed unfair labor practice charges against the hospital. The Board ultimately found the hospital had violated the NLRA as alleged. The employer petitioned for review of the Board’s order, while the Board sought enforcement.

Denial of representation request. The appeals court considered whether the hospital violated the NLRA by denying the nurses’ request for union representation in connection with the peer-review hearings. In this instance, the court determined the Board’s ruling that the employer violated the nurses’ Weingarten rights could not be sustained. An employee’s Weingarten right is infringed when an employer compels him to appear at an interview that may put his job in jeopardy. However, absent compulsory attendance, the right to union representation recognized in Weingarten does not arise.

Here, the nurses were given precisely that choice. The letters advising them of the charges against them expressly “afforded an opportunity” to appear before the committee. However, neither nurse was compelled to attend a committee hearing so as to trigger a right to union representation under Weingarten.

Investigatory interview. Section 8 of the NLRA imposes three obligations on employers. First, an employee must be allowed to bring a union representative to any investigatory interview she is required to attend if she reasonably believes the interview might result in disciplinary action. Second, absent an overriding need for confidentiality, an employer must furnish labor unions (upon request) information bearing on the administration of a collective bargaining agreement. Third, employees presumptively must be permitted to communicate with one another in service of their Section 7 rights.

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NELP, NELA, and unions weigh in on class waivers in employer arbitration agreements

August 17th, 2017  |  Pamela Wolf  |  Add a Comment

The National Employment Law Project (NELP), 10 international labor unions, and the National Employment Lawyers Association (NELA) are making their voices heard in an upcoming U.S. Supreme Court case that they say could radically tilt the legal landscape in favor of big corporations that break workplace laws. The amicus brief these groups filed on August 16, 2017, in consolidated cases, asking the Justices to rule on the lawfulness of class waivers in employer arbitration agreements, contends that employers cannot be allowed to use arbitration agreements to force workers challenging employer misconduct to give up their legally protected right to pursue legal action together as a class or group.

NELA describes itself as a non-profit professional membership organization composed of attorneys who represent workers in labor, employment, and civil rights disputes. NELP is a New York-based nationwide nonprofit organization that partners with community-based worker centers and other low-wage worker representatives to advocate for the rights of unorganized workers.

Hot-button question. In NLRB v. Murphy Oil USA, Inc. (No. 16-307), along with two other cases, Epic Systems Corporation v. Lewis (No. 16-285) and Ernst and Young LLP v. Morris (No. 16-300), the Justices will resolve the question of whether arbitration agreements that bar employees from pursuing work-related claims on a collective or class basis in any forum violate the National Labor Relations Act. In these cases, the NLRA bumps up against the Federal Arbitration Act, which favors enforcement of arbitration agreements. The cases explore what has become such a hot-button issue that the Trump Administration reversed its position under the Obama Administration when the NLRB was seeking certiorari, not only leaving the NLRB to fend for itself on the merits of the case, but actually opposing the Labor Board’s position on the class waiver issue in all of the consolidated cases.

Far-reaching impact. The case will have far-reaching and potentially devastating effects on the ability of workers to pursue legal action when employers break the law, according to NELP. The employers in the consolidated cases assert that the FAA permits them to require employees, as a condition of employment, to submit any legal dispute to private arbitration on an individual, worker-by-worker basis. This type of forced arbitration clause would prohibit every form of group legal action, including class actions, as well as any type of joint or group legal challenge, whether a case brought by two or more workers, a single worker soliciting the joinder of workers, or any other type of similar case, NELP explained.

The brief filed by NELP, the unions, and NELA underscores that the right of employees “to act in concert for mutual aid or protection” is a foundational cornerstone of national labor policy. It is also crucial to addressing the enormous disparity in economic power between individual workers and their employers.

Employees disfavored by arbitration. NELP pointed to recent research showing that arbitration can enable employers to erode enforcement of legal protections. Mandatory arbitration reduces workplace claims to “a miniscule number,” according to Jean R. Sternlight, a law professor at the University of Nevada at Las Vegas. While millions of employees are bound by forced arbitration clauses nationwide, fewer than 2,000 file arbitration claims annually. Even when workers pursue claims in arbitration, they win less frequently and obtain lower awards than workers who have access to the court system, research has shown.

Keeping bad behavior out of public eye. Another problem with forcing workers into individual arbitration proceedings is that it can make people dealing with the same issue proceed one by one, in secret proceedings outside of the public court system, NELP suggested, citing the recent sexual harassment cases at Fox News. These requirements often mean that companies are able to keep repeat violations and egregious corporate behavior out of the public eye.

“The state of forced arbitration in this country is a bald example of wealthy corporations writing the rules for the rest of us,” said NELP Executive Director Christine Owens. “In the fine print, big companies are rewriting the rules and taking away ordinary Americans’ day in court. Class actions and other types of group litigation are crucial for workers in holding big companies accountable when they break the law.”

According to Michael Rubin, a partner at the law firm Altshuler Berzon and primary author of the amicus brief, “If the Supreme Court upholds the forced waiver of employee rights through these arbitration clauses, it will spell the end of class-action employment litigation as we know it. No well-counseled employer will forgo the opportunity to both privatize and individualize potential lawsuits.”

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Grievance reveals possible Hatch Act violations

August 10th, 2017  |  David Stephanides  |  Add a Comment

A government lawyer was given a five-day suspension for (1)  “inappropriate conduct” towards a female supervisor, which involved loud talking or shouting that was deemed disrespectful and (2) inappropriate conduct regarding use of government property. The lawyer filed a grievance (U.S. Department of Education and AFGE. 17-2 ARB ¶6945. Thomas Coyne).

The hearing was scheduled for 9 am one December morning in 2014. It was at this point that the grievance took a strange turn. Neither party showed up for the hearing. When the arbitrator called them, they said that they were in an adjacent room and would be there shortly. When they arrived, they told the arbitrator that the lawyer and the supervisor had resolved their differences on issue #1 and that he had been reinstated. They jointly informed the arbitrator of their intent to withdraw the grievance. They only briefly mentioned issue #2, noting that a report had been made and that the employer was considering whether to pursue criminal charges.

The arbitrator, however, refused to accept their settlement and dismiss the grievance. Even though no testimony was ever given at the hearing, the parties had submitted a series of exhibits prior to the hearing. Some of those exhibits revealed that the charge underlying issue #2 was the use of a government computer to send emails prior to the 2008 presidential election extolling one of the candidates, possibly in violation of the Hatch Act. More than 800 government employees had apparently sent email messages to school superintendents reminding them that they could lose public funding if the other candidate won. The arbitrator’s justification for refusing to dismiss the grievance was found in the “heavy damages to the general public caused by Issue item 2.” The arbitrator also characterized the joint effort to dismiss a grievance based on an argument between employees as a conspiracy to keep the real issue secret until after the statute of limitations had expired. It is reasonable to presume, the arbitrator said, that the results of the 2008 and 2012 national elections would have been different had criminal charges been made against these employees.

Manipulating a free national election is a crime, he said. If these acts go unpunished, government employees at other agencies will feel free to manipulate future elections. Democracy itself is at risk. As a result, the arbitrator denied the grievance based on issue #1. As for issue #2, he ordered the employer to terminate the lawyer and any other employees who manipulated the election, and he ordered the employer to deny them any benefits, including their pensions. In addition, he ordered prison terms and fines (times and amounts to be determined) for any person found in the exhibit to have violated the Hatch Act as a result of the employer’s internal investigation.

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