Many franchise agreements contain a provision that restricts a franchisee from hiring or soliciting the employees of the franchisor or other franchisees. A class action lawsuit that was recently filed in the Eastern District of Texas could require removal of this type of provision in the future. Though this suit is only at the initial complaint phase, the outcome of this case could help shape the future of franchisee restrictive covenants.
In Ion v. Pizza Hut, LLC, Kristen Ion (“Ion”) filed this complaint on behalf of similarly-situated managers of Pizza Hut restaurants. Ion claims that Pizza Hut, LLC (“Pizza Hut”) has colluded with all of its franchisees to engage in anticompetitive behavior in violation of the Sherman Act. Further, Ion claims that the restrictive provision is a naked restraint on competition and a per se violation of the antitrust laws.
The provision at issue, as seen in many franchise agreements, forbids a franchise owner from hiring or soliciting any employees of the franchisor, its units, or any other franchise. Ion claims that this restraint eliminated a franchisee’s incentive to offer competitive employment packages to management personnel and restricted the mobility of such personnel. Further, Ion argues that this restraint lowered salaries and benefits due to the limited job marketplace available to Pizza Hut personnel. Ion claims that the training she received from Pizza Hut is only transferable to other Pizza Hut units.
While Ion consistently refers to the fact that each Pizza Hut franchise is its own independent business that has the right to set its own wages for staff, in the same sentence, she argues that the franchisor and franchisees were “co-conspirators” in the endeavor to suppress those wages and mobility. Further, Ion cites to the continued practice of Pizza Hut and its franchisees to cut employee wages and hours through various policies and argues that this restriction is in furtherance of this purpose (as outlined in various news articles). Lastly, Ion claims that executive compensation and franchisee profit increased at the expense of its low-paid management personnel.
However, based on the facts in the complaint, it seems that Ion never attempted to find another job outside of the Pizza Hut franchise system to support her proposition. Further, the citations to commentary by scholars and professors on the topic logically leads one to assume that there is not yet a basis in prior case law for the requested remedy.
The outcome of this case could substantially and materially alter the scope of franchisee restrictive covenants. Any outcome in favor of Ion would trigger an immediate need for revisions to a franchise agreement that contains this restriction and it is important to keep watch of this case.