On December 28, 2018, the D.C. Circuit Court of Appeals issued an opinion in the Browning-Ferris case. In this much anticipated decision, the Court of Appeals concluded that the National Labor Relations Board’s decision to enumerate a new joint employer test was a valid exercise of its authority. The Court of Appeals held, however, the NLRB failed to properly apply the newly created test. Consequently, while the Court of Appeals didn’t completely abrogate the NLRB’s ruling, the opinion frankly raises many questions respecting the future of the Browning-Ferris standard.

In the Browning-Ferris decision, the NLRB generally outlined a new joint employer test where two entities would be considered to be a joint employer if a common law employment relationship exists and if the joint employer possesses “sufficient control” over the “essential terms and conditions” of employment to permit “meaningful bargaining”. This test eliminated the long-standing precedent requiring an employer to have direct and immediate control over the subject employee. For a more detailed analysis of the original decision, and its various twists and turns, please see our previous blogs posts here, here and here.

The controversy surrounding what the Dickens the initial decision in Browning-Ferris means has festered since that time, with the concern from employers being particularly vocal. Specifically, employers have argued that the NLRB failed to establish what the “essential terms and conditions” of employment are, calling the language impermissibly vague and impractical. It didn’t help matters that the NLRB’s response to such concerns had been, essentially, “we’ll know an employment relationship when we see one.”

The Court of Appeals, in reviewing prior jurisprudence, concluded that the right-to-control standard is an established aspect of common-law interpretations of agency and that the analysis is not limited to the direct and immediate control an employer exerts over the employee. In analyzing this new standard versus long-held common-law agency decisions, the Court of Appeals found that cases of common-law agency focused not only on actual control over the employee but the “right to control” the employee as well. Thus, according to the Court of Appeals, the NLRB properly considered not only direct control but also control which is reserved and unexercised.

However, in remanding the case to the NLRB, the Court of Appeals held that the NLRB failed to reserve its application of the indirect control factor to those “essential terms and conditions” of employment. The Court of Appeals stated that the NLRB failed to differentiate between those aspects of indirect control relevant to status as an employer, and those aspects which are simply the by-product of common-law third-party contractual relationships.

The Court of Appeals further guided the NLRB in future actions by stating that, if it again finds Browning-Ferris to be a joint employer, it could “not neglect to (a) apply the second half of its announced test; (b) explain which terms and conditions are ‘essential’ to permit ‘meaningful collective bargaining’; and (c) clarify what ‘meaningful collective bargaining’ entails and how it works in this setting.” In the view of these commentators, the Court of Appeals’ guidance highlights the concerns raised by employer groups and provides hope that the NLRB will dedicate itself to further fleshing out the standards so as to provide meaningful guidance.

Unfortunately, one important question that the Court of Appeals failed to answer is whether indirect control, in and of itself, can establish joint employer liability. Given this continuing ambiguity, the franchise community will continue to be left with many questions as to whether franchisors will be considered the joint employer of their franchisees’ employees.

But this is not the only open question.

Perhaps the more important question is what will the NLRB do now? As is noted in our blog post here, the NLRB is currently in the midst of a rulemaking process to further develop and define the joint employer standard. The deadline for comments on this proposed rulemaking has been extended multiple times, suggesting both a large number of comments and disparate views. It is unclear whether the NLRB will rule on the remanded Browning-Ferris case prior to implementation of a new rule or wait for the completion of the rulemaking process. Either way, grab your popcorn, candy and pop, and settle in for more excitement and fireworks, NLRB-style.

Copyright: vician / 123RF Stock Photo

With apologies (and props) to the great Yogi Berra, it’s deja vu all over again at the National Labor Relations Board.  The Board has extended the commenting period on its proposed joint employer rulemaking for a second time. Comments to the proposed rule may now be submitted until January 14, 2019. And the Board will accept replies to comments submitted in the original comment period through January 22, 2019.

We have blogged about this important issue to the franchise community twice before. The new rule would overrule the Browning-Ferris decision that eliminated the “direct and immediate” control requirement before an entity could be considered to be an employer. We have also noted, in comments submitted by our own Tami McKnew, that the proposed rule needs to be clarified so that the valid policing of licensed trademark rights would not be considered to be the act of an employer.

We encourage you, if you have not already, to make your voice be heard on this important proposed rulemaking by the NLRB.

My esteemed colleague Tami McKnew today filed the following comment on the NLRB proposed joint employer rulemaking, 83 FR 46681:

The proposed rule specifically acknowledges the effects of the 2015 shift in joint employer analysis evident in the Board’s decision in Browning-Ferris Industries, 362 NLRB No. 186 (“Browning-Ferris”). Following the Browning-Ferris decision, franchisors, temporary employment firms, contract employers and others whose businesses necessitate some degree of interaction with and arguable control over non-employed workers found themselves as joint employers, despite decades of precedent otherwise. The effect on such businesses was immediate and profound.

With this proposed rulemaking the NLRB more clearly defines the conditions under which joint employment may be evident, and largely restores the pre-Browning-Ferris analytical framework. This is entirely appropriate, given the decades of business relationships and industries whose very structure incorporated and depended upon the prior established analytical framework. As recognized in the Notice, the proposed rule also reflects the pre-Browning-Ferris well-established and long-standing joint employment analytical framework.

However, that the Notice fails to adequately address, by specific acknowledgement or by example, the concerns of licensors and licensees of intellectual property, in particular patent, trademark or service mark licensors. Owners of such intellectual property rights must police and protect those rights; failure to do so may render such rights unenforceable. In legal jurisprudence, a patent owner’s policing obligations have been whittled down, especially given the elimination of a laches defense in infringement actions, SGA Hygiene Products Aktiebolag v. First Quality Baby Products, 137 S.Ct. 954 (2017), but affirmative action must be undertaken by the licensor to protect against infringement. The policing obligation remains for trademark owners, however. 15 U.S.C. §1064(5)(A).

Patent and trademark owners may license rights to practice patented technology or use trademarks or service marks. Such licenses require the licensee to abide by standards and/or to adhere to particular practices. Certain types of patents, for instance, process or method patents, may dictate an entire process and all the operations required to perform the method or process; the licensee has little or no choice as to the operations governed by the patent license.

Similarly, trademark or service mark licenses may dictate extensive quality control standards, processes and procedures. The most obvious example is the central role that trademark and service mark licensing have in a franchise system. But such licenses are not limited to the franchise industry. A dealer or distributor may sell products bearing the trademarks of one or more licensors; it may service products pursuant to licenses from different licensors; and it may lease products under license from yet a third licensor. The scenario is not unlikely. A tire dealer may be licensed to sell multiple brands; it may be licensed to provide recapping services, as directed in the license, by a different licensor; it may lease products under the service marks of yet a third licensor. Each of the licenses will include mandated procedures and operations over which the dealer has no control.

In each of these cases, control over significant operations in the licensee’s business is dictated by the licensor. Will the efforts of the licensors to police and enforce the licensed rights expose them to the risk of being considered the joint employer of the licensee’s employees whose employment is to perform such operations? And for a licensee who holds licenses from multiple licensors, as in the distribution example above, are multiple licensors potential joint employers? In each situation, the licensor can be said to offer “direct and immediate” control over the licensee’s employees, in that the licensor dictates the operations that form the central part of their employment. The ability of an owner of intellectual property to reap the potential financial benefits of a patent or trademark/service mark is ephemeral at best if enforcing those rights exposes one to the risk of becoming a joint employer of the licensee’s employees. More importantly in the context of the NLRB’s proposed rulemaking, it makes little sense to include such licensors at the bargaining table. Absent specific recognition in the proposed rule of the unique position of intellectual property licensors and licensees, the application of the joint employer analysis is unclear.

I respectfully suggest amending the proposed rule to include language which provides that the status of joint employment is inappropriate based solely on a licensor’s policing or enforcement of its patent, trademark or service mark requirements and standards. Intellectual property owners should not be dissuaded from enforcing their rights to control, police and enforce their patent, trademark or service mark rights.

Note:  Comments were originally due November 14th, but that deadline has been extended to December 13, 2018. See 83 FR 55329.

In a major policy announcement, on Friday, September 14, 2018, the National Labor Relations Board (the “Board”) proposed a new regulation establishing the standard for determining whether two employers, as defined in Section 2(2) of the National Labor Relations Act (the “NLRA”), are a joint employer of a group of employees under the NLRA.

Under the regulation proposed by the Board, an employer may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. More specifically, to be deemed a joint employer under the proposed regulation, an employer must possess and actually exercise substantial direct and immediate control over the essential terms and conditions of employment of another employer’s employees in a manner that is not limited and routine.

This proposed rule will overrule the Browning-Ferris decision, under which a company could be deemed a joint employer even if its “control” over the essential working conditions of another business’s employees was indirect and limited, or contractually reserved but never exercised. The Board, in its proposed rule, explains that Browning-Ferris’ relaxation of the concept that both of the putative employers of an employee must have “direct and immediate” control over the employee to be particularly troubling.  In what it calls an attempt to “clarify” the proposed standard, the proposed rule also includes a number of examples.

There was a dissent from one member of the Board.  The dissent essentially argues that the proposed standard of “direct and immediate” is no more clear that the Browning-Ferris standard, and that the Board is interfering with the natural development of the NLRA through the common law.  I think it is fair to criticize the proposed rule due to the the proposed standard of “direct and immediate” being less than clear, and I expect that it will be further developed in the rulemaking process.  Any proposed rule, however, is intended to short circuit the common law, and so I find that criticism to be extremely weak.

Comments, of course, are a key element of the rulemaking process. They must be received by no later than November 13, 2018.  Reply comments to initial comments must be received by November 20, 2018.  Comments may be submitted electronically through http://www.regulations.go or sent by mail or hand delivery to: Roxanne Rothschild, Associate Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001.  The Board cautions that comments sent via mail are often delayed due to security concerns.

This is THE time for the franchising community to be heard on the joint employer question. Comment now. Let your voice be heard.

I attended the International Franchise Association’s Franchise Action Network (“FAN”) Annual Meeting last week in Washington D. C. Basically, this is an educational event culminating in the participants being sent out to the “Hill” to lobby their senators and representatives on issues effecting small businesses – and especially franchised businesses. Speakers from the Hill, this year including Donna Brazile, Michael Steele and Senator Rand Paul, spoke to the delegations about the state of politics and the issues we were presenting to our representatives. I was part of the Pennsylvania delegation and most of the attendees in my district were franchisees.

The issues we discussed with our representatives focused in the joint employer issue and tax reform. Though some headway has been made regarding the joint employer issue, there is still work to be done for those wishing to reverse the standard set forth in 2015 by the National Labor Relations Board (NLRB) in the Browning-Ferris Industries decision, which replaced the “direct and immediate control” standard with a test based on “indirect” and “potential” control. Many feel this shift will cause franchisors to be “joint employers” with their franchisees which could invalidate the franchise model’s goal of providing opportunities for small business owners to run their own independent business.

Recent headway on the joint employer issue has been the passage in 2017 by the US House of Representatives of the Save Local Business Act (HR 3441) to simplify the joint employer standard for franchised businesses. However, that legislation has stalled in the Senate. In addition, the NLRB has announced plans for rulemaking relating to the joint employer standards.

Our first task on the Hill was to ask our congress to sign onto letters written by their fellow congressmen and senators to ask Labor Secretary Alexander Acosta to begin rulemaking on the joint employer issue under the Fair Labor Standards Act, under which franchises have seen many joint employer lawsuits as it allows individuals to file private actions. The hope is that this would help standardize the varied rulings that are coming out of the different federal circuit courts on the issue.

The second issue on our list to discuss with our congressional representatives was also related to the joint employer issue. The Trademark Licensing Protection Act was recently introduced into the House of Representatives by Rep. Steve Chabot (R-OH) and Rep. Henry Cuellar (D-TX) to help resolve the conflict between federal trademark law and the rationale supporting claims of joint employment. Federal trademark law requires the owners of trademarks, in this case the franchisor, to maintain control over its trademark and to monitor its use. Franchisors do this by controlling the use of the mark, which could be wearing standard uniforms, use in advertisement or otherwise, and the quality of the products supported by the mark, as well as other controls. However, this control supports the claim that a franchisor is a joint employer of the franchisee, thus catching the franchisor in the middle of these two laws. The Trademark Licensing Protection Act is being proposed to clarify that franchisors who control the actions of franchised businesses to maintain their brand will not be considered “joint employers” as a result under federal law.

The last issue for discussion was tax reform, particularly focused on aspects impacting pass-through entities, like limited liability companies which is the dominant form of company franchisees employ. First, we asked to make the individual tax cuts permanent as they effect owners of pass-through entities. Second was to clarify the exemption relating to professional service entities from those tax cuts. Certain professions, such as attorneys, are exempt from the tax cuts, but due to the vagueness of the wording, other unintended businesses may be covered by the exemption such as home health services. The IFA has requested that the Department of the Treasury fix this so this may go forward without the need for congressional action. Finally, because of a purported error in the tax bill, the ability to depreciate certain property and capital expenses at an accelerated rate has been eliminated so that these assets depreciate over an extremely long period of time. This causes a great disincentive for businesses to renovate and buy new equipment. The final ask was to fix that error and allow bonus depreciation.

I have gone to the Hill to lobby for similar issues before. I enjoy the meetings with the Representatives because the groups are smaller and the Representatives and their staff seem to be more responsive. I have always met with staff members for the Senators, but it is important to communicate with the staff as they are the ears of the Senators. Of course, for issues that are not bipartisan, if the congressman or senator is of the other party, they are less likely to act. But this is an important part of our democracy and I encourage all to go to the Hill or your state capital to meet with your representatives on issues important to you.

In Lomeli v. Jackson Hewitt, Inc., the United States District Court in the Central District of California held that the plaintiff, Luis Lomeli (“Lomeli”), had submitted enough evidence to hold the franchisor (“Jackson Hewitt”) vicariously liable for potential class actions due to a franchisee’s preparation and submission of fraudulent tax returns. The most concerning part of this decision is that the Court held that Jackson Hewitt could be directly liable for the fraud claims. This decision is another lesson in the necessity of leaving a certain level of discretion to a franchisor’s franchisees.

Under the direct liability claim, the Court examined Jackson Hewitt’s level of involvement in the submission of a franchisee’s tax returns. Specifically, the Court noted that the franchisee was required to use Jackson Hewitt’s proprietary software to submit the fraudulent tax returns and that Jackson Hewitt controlled the software. Further, despite the fact that Jackson Hewitt had approved the submission of a tax return for Lomeli mere days before, Jackson Hewitt approved a second submission for Lomeli with a markedly different tax return. As such, Jackson Hewitt had and controlled the information that gave rise to the fraudulent filing of the tax returns. To make matters worse, Jackson Hewitt had recently run an advertising campaign touting its 100% accuracy guarantee and superiority to “mom and pop” tax preparers. The Court held that these affirmative statements to the public had the explicit purpose of engendering their trust. Further, Jackson Hewitt could not run these advertisements to convince consumers to use them and then immediately turn around and dismiss any reliance on them. As such, Lomeli could proceed with its fraud claim directly against Jackson Hewitt.

As a secondary claim if the direct liability claim fails, the Court examined the level of control Jackson Hewitt exerted over certain areas of the operation of the franchise to determine vicarious liability. In holding that Jackson Hewitt could be vicariously liable for Lomeli’s fraud claim, the Court highlighted Jackson Hewitt’s ability to hire, direct, supervise, discipline or discharge the franchisee’s employees, the required use of Jackson Hewitt’s Code of Conduct for employee relations and required attendance by franchisee’s employees at training sessions aimed at preventing the specific harm claimed by Lomeli. The Court noted that Jackson Hewitt’s control of the instrumentality that caused the harm, the hiring of tax preparers, directly contributes to its vicarious liability.

Unfortunately for Jackson Hewitt (and franchisors everywhere), Jackson Hewitt could be 100% liable for the filing of the inaccurate and fraudulent tax returns.

 

The fight against joint employment of franchisors and franchisees took a small hit when the Western District of Pennsylvania (“Court”) chose to allow a franchisee’s employee’s suit to proceed. In Harris v. Midas, et. al., the plaintiff, Hannah Harris (“Harris”), convinced the Court that she had proffered enough evidence to allege a plausible basis to hold the franchisor (“Midas”) as a joint employer and vicariously liable for the franchisee’s conduct with respect to Harris’ sexual harassment claims against her franchisee employer.

In the instant case, the Court looked at three factors commonly employed to evaluate joint employer liability. First, the Court examined Midas’ authority to hire and fire employees, promulgate work rules and assignments and set conditions of employment. While the Court noted that Midas did not have the authority to hire or fire employees, the Court held that Midas could establish work policies. Specifically, the Court pointed to the provisions of the Franchise Agreement that require franchisees to comply with all lawful and reasonable policies imposed by Midas. Those policies specifically include those policies governing the training of personnel. Further, Harris noted that Midas provided guidance to its franchisees on the creation of its employee handbook and the inclusion of a sexual harassment policy, further exerting its control to influence these workplace policies.

Second, the Court held that while Midas did not exert control over the day-to-day supervision of employees, under the Franchise Agreement, Midas had the authority to do so. Notably, the Court cited Midas’ ability to require employees to attend additional training programs. Further, Midas trained the franchisee who, in turn, trained its employees on the Midas system. Lastly, the Court noted Midas’ ability to visit and inspect the franchisee’s location as further evidence of Midas’ potential influence over the day-to-day supervision of the franchisee’s employees. The Court’s reliance on these provisions is worrisome because many franchisors use similar language to protect the uniformity of the brand.

The last factor, Midas’ control over employee records, the Court again made a stretch to connect the dots. The Midas Franchise Agreement stated that Midas has the right to audit and examine the franchisee’s books and records, which, the Court held, could be interpreted to include personnel files if read as broadly as possible.

Furthermore, Harris argued that Midas was vicariously liable for the franchisee’s conduct because the franchisee was essentially acting as Midas’ agent. The Court agreed holding that the terms of the Franchise Agreement are so generally phrased as to provide Midas broad discretionary power to impose nearly any restriction or control it deems appropriate.

While the case at hand is at the initial phase and will likely be subject to further scrutiny, it demonstrates another avenue that courts are using to impose joint employer liability. Here, the Court is relying upon the broad and sweeping provisions of the Franchise Agreement that Midas is using to protect its brand and franchise system. The fine line franchisors must continue to tread between exerting just enough control to ensure proper maintenance of the franchise system but not enough to cause joint employer liability continues.

 

In December, we wrote that the NLRB had issued a decision overturning Browning-Ferris’ joint employer test and returning to the previous standard for determining joint employment.  That decision in Hy-Brand Industrial Contractors was seen as a return to sanity by employers and pro-business groups.

Unfortunately, the NLRB announced today that it had vacated the Hy-Brand decision due to the fact that one of its members who heard the case had a conflict.  Member William Emmanuel’s law firm had participated in the Browning-Ferris case.  Since Hy-Brand directly addressed the Browning-Ferris standard, the NLRB Inspector said that Emmanuel should not have participated in the Hy-Brand case.

The Browning-Ferriss case set forth a standard for joint employment that noted that businesses could be joint employers simply because they reserved the right to control the actions of the other entity’s employees, even if they never actually exercised that authority.  That, of course, created great consternation in the franchise setting as franchisor agreements may typically have a broad right to address franchisees’ employee issues that may never actually be exercised.  Franchisors, conscious of protecting their brand’s image, usually inserted such clauses to insure that a franchisee’s employees would not denigrate the brand.

It is not clear at this point when Hy-Brand will be reheard or if the issue will come before the Board in another case.  In the meantime, employers are stuck with Browning-Ferriss.  To the extent that employers revised franchise agreements after the Hy-Brand decision was issued, they should have those agreements reviewed by legal counsel.

Yesterday afternoon, the NLRB issued a decision in Hy-Brand Industrial Contractors that caused a collective sigh among employers.  The decision rolls back the joint employer standard to what it was before Browning-Ferris Industries, 362 NLRB No 186.

The Browning-Ferris decision was greeted with alarm by most employers, especially franchisers and franchisees, as it made it easier for employees to claim that two entities were joint employers.

Specifically, Browning-Ferris held that two entities could be joint employers even where they never exercised joint control over essential terms and conditions of employment.  It was enough that there was an agreement between the parties where they reserved the right to exercise joint control.

The Hy-Brand decision explicitly overrules Browning-Ferris.  Interestingly, the decision discusses in some detail the negative impact Browning-Ferris had on franchisers.

Now the test for determining whether an employer has exercised joint control goes back to what it was before Browning-Ferris was decided in 2015.  Two entities will be found to be joint employers where:

  • joint control is exercised;
  • the control has a “direct and immediate” impact on employment terms; and
  • where such control is not merely “limited and routine.”

Franchisers should still be careful when setting up controls over payroll processes or scheduling of employees of franchisees or when they have reserved the right to address discipline with the franchisee’s employees.  The mere fact that an employer reserves the right to weigh in on disciplinary issues will no longer mean that they could be a joint employer.  However, if that right to weigh in on discipline is frequently exercised, then there might be a finding of joint employment.  In other words, wade carefully.

The U.S. House Committee on Education and the Workforce recently approved the “Save Local Business Act” (HR 3441 – Byrne).  If enacted, the Act would limit joint employer liability by reversing the rule announced by the NLRB in Browning-Ferris Industries, 362 NLRB No. 186.  The Browning-Ferris decision departed from 30 years of precedent by issuing a new joint employer test with significant ramifications for the franchise model.  Under Browning-Ferris, a company (e.g., a franchisor) that has “indirect” or “potential” control over the employees of another company (e.g., a franchisee) may be considered a joint employer of those employees. The decision significantly expanded franchisors’ potential liability for matters related to their franchisees’ employees (including collective bargaining and employment torts).  Browning-Ferris is currently on appeal before the D.C. Circuit Court of Appeals.

The Save Local Business Act would amend the National Labor Relations Act and Fair Labor Standards Act to clarify that a person or company is a joint employer only if it “directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over the essential terms and conditions of employment.” Essential terms and conditions include hiring employees, discharging employees, determining individual employee rates of pay and benefits, day-to-day supervision of employees, assigning individual work schedules, positions, and tasks, and administering employee discipline.

During its hearings, the Committee heard from franchise owners who described the impact of the Browning-Ferris rule on their business operations. Many legislators have specifically cited the franchise industry in announcing their support for the Act.  The Act’s passage would be a major win for the franchise model, which has been plagued with uncertainty over joint employer liability since the Browning-Ferris decision.