Wage And Hour Legal Training And Assistance Now Available Through Your FOA


As many of you know, the joint employer initiatives of the National Labor Relations Board and the United States Department of Labor have created quite a tumult in the world of franchising. Some have suggested that if the joint employer doctrine receives widespread acceptance, it will end franchising as we know it. I do not subscribe to that form of “the sky is falling” analysis, but these developments do require us to think and act in new and different ways about the relationship between a franchisor and its franchisees.

Dr. David Weil, who wrote the book The Fissured Workplace, is the spiritual godfather of the joint employer doctrine. From his perspective, his is not an attempt to redefine the franchise relationship, but only to assure that employees receive the wages that they are entitled to under applicable federal law. He believes that only by involving a franchisor can the rate of compliance be elevated to the benefit of all concerned.

Against this backdrop, I was privileged to co-moderate a plenary session at the 2015 ABA Forum on Franchising. Our guests were Richard Griffin, General Counsel of the National Labor Relations Board and Dr. Weil, the head of the Wage and Hour Division of the U.S. Department of Labor. Both confirmed that their goal is not to attack franchising, but only to make sure that the rights of employees are protected. Following that presentation, many lawyers who represent franchisors asked me how we could get these regulatory agencies to back off and leave franchising alone.

My response was that the most effective way to reduce this kind of government interference in the franchise relationship was for franchisors to work with the independent franchisee associations in their system under which the association would arrange for some of the same kind of human resources training, advice and coaching that franchisors routinely provide to the managers of their company-owned locations. Most franchisees do not have human resources departments or labor lawyers at their beck and call. Many of the franchise lawyers that I spoke to on the subject were deeply skeptical, indeed suspicious.

Nevertheless, earlier this year, I had a conversation with the SEI legal department. I proposed to them that SEI work in cooperation with the National Coalition, and assist the National Coalition in providing wage and hour legal advice and training to franchisees, to the benefit of both SEI and the franchisees. This assistance and training would take the form of presentations at National Coalition Board meetings, National Coalition conventions, FOA meetings and in articles written in Avanti. In this unique model—the first one in franchising in the United States—both parties would get what they need.

Over the last several months, I have worked with the SEI legal department on the details of the arrangement, which have now been finalized and are ready to be implemented. The essential elements of this initiative are as follows:

  1. The National Coalition has chosen Ogletree Deakins, a national labor and employment law firm with offices in 49 cities in 27 states, to provide these services. You have already seen an article written by Ruthie Goodboe, one of the partners in the firm, published in the previous issue of Avanti. Guillermo A. Escobedo, another partner of the firm, made a detailed and very well received presentation at the recently concluded National Coalition convention in Las Vegas. More information about the firm can be obtained at http://www.ogletreedeakins.com/who-we-are/overview.
  2. The Ogletree law firm will be available to present one-hour presentations to any FOA that requests it. The presentation will be made by a partner of the firm from an office in proximity to the FOA. This will make it more likely that the attorney who makes the presentation will be familiar with the state labor laws applicable to the franchisees who are members of the FOA.
  3. The cost of each presentation has been negotiated to a fixed dollar amount, which will be paid by SEI. The billing for these sessions will be handled through the National Coalition, without the need for the FOA to advance the funds or otherwise be involved in the billing.
  4. We have agreed with SEI that these presentations will be subject to the attorney-client privilege as between Ogletree Deakins and each franchisee in attendance. This means that the advice that is provided, and the questions that franchisees ask, will be confidential and that neither SEI nor anyone else can ever compel the franchisee or the attorney presenting to the franchisees to testify as to the advice given during the session.
  5. Neither the National Coalition nor the FOA will be providing SEI with a list of the franchisees who attend these meetings, and SEI has agreed that it has no present intention to use the fact of a franchisee’s attendance at such a meeting against a franchisee in the event of a controversy regarding wage and hour law compliance by the franchisee.
  6. To arrange a wage and hour presentation at your FOA meeting or event, contact the National Office.

While there are many areas on which SEI and its franchisees are not on the same page, and while the 2019 franchise agreement looms in the future, as I have said many times in this space, there are occasions on which the interests of both parties coincide, and where working together makes sense. This is certainly one of those instances, and it is my hope that in the future there will be many more.

Arrange For Your FOA To Have A Sponsored Presentation On Changing Wage and Hour Employment Practices
National labor and employment law firm Ogletree Deakins, with offices in 27 states, will provide these services.
Co-sponsored by SEI and NCASEF
Contact The National Coalition Office at 831-426-4711 or nationaloffice@ncasef.com to arrange a presentation for your FOA.