Recently we discussed the headwinds that remain for the franchise community as a result of policy changes coming from Washington and the various state capitols.  What should franchisors consider as they swim in this sea of dangerous uncertainty? Unsurprisingly, there is no clear path; decision-making in the fog of the unknown is risky. That said,

While the Protect the Right to Organize (PRO) Act was passed by the House of Representatives, it has not been made part of the Biden administration’s infrastructure efforts thus far and does not appear have sufficient support to overcome a certain filibuster in the Senate. Therefore, passage of the Act in its present form is

The California version of the ABC test is arguably the most hostile to franchising. Nonetheless, the risk is not confined to California.

This is because the ABC employee classification test, with variations, has been adopted in a majority of states including, in addition to California: Alaska, Arkansas, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana,

The second troublesome threat is the joint employment standard. The Obama Adminstration DOL caused angst in the franchise industry in January 2016, when it adopted a joint employment standard that focused on “whether the employee is dependent on the potential joint employer who, via an arrangement with the intermediary employer, is benefitting from the work.”

The PRO Act would do serious, and perhaps mortal, damage to the franchise industry. It would make sweeping changes to the National Labor Relations Act (NLRA), the Labor Management Relations Act (LMRA), and the Labor Management and Disclosure Act (LMDA). Most pertinent to franchising, the PRO Act would adopt the California ABC standard for determining

Omens of the Apocalypse for the franchise industry are everywhere:

  • The pending Protect the Right to Organize (PRO) Act;
  • The return of David Weill, author of Fissured Employment and chief architect of the Obama era joint employment standard, to the Department of Labor as Wage and Hour Administrator;
  • Withdrawal of the control-based joint employment standard

Buried deep in the roughly 5,500 pages of the most recent COVID relief legislation are two unexpected gifts for trademark owners. One of those gifts, the Trademark Modernization Act:

(a) Essentially overrules eBay v. MercExchange and creates a rebuttable presumption of irreparable harm on a finding of trademark infringement, including in instances of cybersquatting;

In Part 1 of this series, we discussed the recent actions taken by Congress regarding the PPP program as well as the efforts by the Fed. In today’s post, we dig deeper into the challenge by state Attorneys General to the Department of Labor’s final joint employment rule moved forward in the Southern District of