The Tangled Web: Different Tests under Texas and Federal Laws Leave Franchisors and Franchisees Wondering Whether and When They Are Joint Employers
The International
Franchise Association defines franchising as a method for expanding business
and distributing goods through a licensing agreement. In the franchisor-franchisee relationship, a
franchisor typically grants a license to a franchisee to conduct business under
the trademark and trade name of the franchisor.
http://www.franchise.org/what-is-a-franchise.
For obvious reasons, the
franchisor has a vested interest in ensuring that the franchisee maintains the
quality and integrity of the brand, which in turn, generally requires some level
of oversight of the franchisee’s operations.
But how much control can a franchisor exercise before it crosses the
threshold and becomes a joint employer with its franchisee for purposes of
establishing liability?
The Texas
Labor Code
Effective September 1,
2015, and in an apparent response to the federal government’s efforts to find
joint employers behind every corner, the Texas Legislature amended seven
provisions of the Texas Labor Code to clarify that franchisors (defined as any
person who grants a franchise and participates in the franchise relationship),
are not the employers of a franchisee (defined as any person who is granted a
franchise) or franchisee employees unless a court of competent jurisdiction in
Texas has found that the franchisor has exercised a type or degree of control
over the franchise or the franchisee’s employees not customarily exercised by a
franchisor for the purpose of protecting the franchisor’s trademarks and
brands.
The seven sections of
the Texas Labor Code that were amended are:
Chapter 21 (Employment Discrimination); Chapter 61 (Payment of Wages);
Chapter 62 (Minimum Wage); Chapter 91 (Professional Employer Organizations); Chapter
201 (Unemployment Compensation); Chapter 401 (Workers’ Compensation); and
Chapter 411 (Workers’ Health and Safety).
The obvious questions
raised by the amendments are: (1) what is the meaning of the phrase, “not
customarily exercised”?; and (2) what test or factors will a court apply to
determine whether a degree of control is or is not customarily exercised by a
franchisor?
Board
Law
In the Browning-Ferris Industries decision it
issued in August 2015, the National Labor Relations Board (NLRB) restated its
standard for how it will determine the existence of a joint employer
relationship. https://www.nlrb.gov/news-outreach/news-story/board-issues-decision-browning-ferris-industries.
Under the restated standard, the Board may find that two or more entities are
joint employers of a single work force “if they are both employers within the
meaning of the common law, and if they share or codetermine those matters
governing the essential terms and conditions of employment.”
In determining whether
a common-law employment relationship exists, the Board looks to the Restatement (Second) of Agency (1958) for
guidance, which provides that, “a servant is a person employed to perform
services in the affairs of another and who with respect to the physical conduct
in the performance of the services is subject to the other’s control or right
of control.” The phrase “essential terms
and conditions of employment” is broadly construed to include, for example,
hiring, firing, discipline, supervision, direction, controlling scheduling,
seniority and overtime, determining wages and hours, and the manner and method
of work performance.
Importantly, the
Board’s decision expressly rejects its prior standard that required both the possession and exercise
of the authority to control the terms and conditions of employment to find a
joint employer relationship. Now,
reserved authority, even if not exercised, and indirectly exercised control,
such as through an intermediary, may establish joint employer status.
The
United States Department of Labor
In January 2016, and
not wanting to miss a ride on the joint employer bandwagon, United States
Department of Labor (DOL) Wage and Hour Administrator David Weil issued
Administrator’s Interpretation No. 2016-1 (AI), wherein he sets forth the DOL’s
“guidance” for determining a joint employer relationship under the Fair Labor
Standards Act (FLSA). https://www.dol.gov/whd/flsa/Joint_Employment_AI.htm.
The AI provides
guidance regarding both vertical and horizontal joint employment. Horizontal joint employment may be
established when an employee is employed by two or more technically separate
but related or overlapping employers.
For example, this analysis would apply where a server works for two separate
restaurants that are operated by the same entity, and the question is whether
the two restaurants are sufficiently associated with respect to the server such
that they jointly employ him.
The AI identifies a
number of factors when analyzing the degree of association between, and the
sharing of control by, potential horizontal employers, including the: (a)
existence of common ownership; (b) overlap of officers, directors, executives,
or managers; (c) sharing of control over operations, including hiring, firing,
payroll, advertising, and overhead costs; (d) degree to which the joint
employers’ operations are intermingled; (e) supervision by one employer over
the work of another employer; (f) treatment of employees as a pool of employees
available to both employers; (g) sharing of clients or customers; and (h)
existence of any agreement between the potential joint employers.
Vertical joint
employment, as defined in the AI, may exist when an employee of one employer,
referred to in the AI as an “intermediary employer,” is also, with regard to
the work performed for the intermediary employer, economically dependent of
another employer, referred to as a “potential joint employer.” According to the AI, where there is vertical
joint employment, there is usually a contract or other arrangement, but not
necessarily an employment relationship, between the intermediary employer and
the potential joint employer.
In vertical joint
employment situations, one employer typically contracts with an intermediary
employer to provide it with labor, and/or perform some employer functions, such
as hiring and payroll. The vertical
joint employment analysis is used to determine, for example, whether a
construction works who works for a subcontractor is also employed by the
general contractor.
A threshold question in
the vertical joint employment analysis is whether the intermediary employer is
actually an employee of the potential joint employer, because if it is, then
all of the intermediary employer’s employees are employees of the potential
joint employer too, and there is no need to conduct a vertical joint employer
analysis. For example, if a farm labor
contractor is not actually an independent contractor, but is an employee of the
grower for which it provides services (meaning it is economically dependent on
the grower as a matter of economic reality), then all of the farm labor
contractor’s employees are also employees of the grower. As set forth in the AI, it is therefore
important to first determine whether the intermediary employer is an employee
of the potential joint employer before proceeding with the joint employment
analysis. Interestingly, the AI requires
a look at the economic reality of the relationship before proceeding to the
vertical joint employment analysis, which is itself an economic reality test.
The AI identifies seven
economic realities factors it contends should be applied to further the
expansive definition of employment under the FLSA: (a) directing, controlling,
or supervising the work performed; (b) controlling employment conditions; (c)
permanency and duration of the relationship; (d) repetitive and rote nature of
the work; (e) integral to business; (f) work performed on premises; and (g)
performing administrative functions commonly performed by employers.
According to the
majority opinion in the Browning-Ferris decision,
the economic realities test used by the DOL “is significantly more expansive”
than the Board’s common-law test.
The
Fifth Circuit
In 2014, the Fifth
Circuit applied its version of the economic realities test to determine whether
a pizza and pasta restaurant franchisor was a joint employer with its
franchisee for purposes of liability for alleged FLSA violations. Orozco
v. Plackis, 757 F.3d 445 (5th Cir. 2014).
In that case, a cook employed by the franchisee sued the franchisee for
various FLSA violations, settled with the franchisee, and then added the
franchisor owner, individually, as a defendant under the joint employer
theory. The jury ultimately returned a
verdict for the cook, and the lower court denied a motion for judgment as a
matter of law, resulting in the franchisor’s appeal.
Under its test, the
Fifth Circuit evaluated whether the individual franchisor: (a) possessed the
power to hire and fire the employees; (b) supervised and controlled employee
work schedules or conditions of employment; (c) determined the rate and method
of payment; and (4) maintained employment records. The court was clear that a party need not
establish each element in every case.
The court agreed there
was insufficient evidence for the jury to find a joint employer relationship
because: (a) there was no evidence the individual franchisor maintained the
cook’s employment records; (b) despite the movement of employees between the
franchisor and franchisee locations, and the fact the franchisor gave advice to
the franchisee on improving profitability, there was no direct evidence that
the franchisor had authority to hire and fire the franchisee’s employees; (c)
there was insufficient evidence to show the franchisor supervised and
controlled employee work schedules or conditions of employment, even though the
franchisor reviewed the work schedules, trained the cook and the franchisee,
and frequently met with shift managers and provided suggestions to improve
profitability; and (d) the cook testified the franchisor did not control the
cook’s rate of pay. Further, the court
rejected the cook’s argument that the franchise agreement between the parties,
which provided that the franchisee would at all times comply with all lawful
and reasonable policies promulgated the franchisor, established sufficient
control by the franchisor to create a joint employer relationship.
The Fifth Circuit’s
economic reality test is far narrower than both the DOL’s vertical joint
employer test and the Board’s restated joint employer test, which places far
greater emphasis on the potential for control of workplace terms and
conditions, as opposed to actual control of them.
For the foreseeable
future, government agencies will more than likely continue to expand the
definition and scope of the joint employer relationship, and employers will
look to the courts to validate or reject the expansion, and provide meaningful
guidance regarding the types of activities a franchisor can take with respect
to its franchisees without losing its status as a single, not joint, employer.
Franchisors cannot
insulate themselves from a joint employer finding simply by stating in a
franchise agreement that the parties do not intend to create a joint employment
relationship. To the contrary, a
franchisor should consult with counsel to determine its potential risk for a
joint employer finding based on the realities of its relationship with its franchisee(s). Once it does so, it can determine how, if at
all, it will modify its franchise arrangements.
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