The Big Easy Proves Anything But
On March 17th, I presented on a panel at the ABA 2016 Midwinter Meeting of the Employment Rights and Responsibilities Committee in New Orleans. Also known as “The Big Easy” and “The Crescent City”, New Orleans is one of the most iconic and loved cities in the United States with its own unique food, culture, and music. If you have never visited this historic town, you should. It’s not all Bourbon Street shenanigans, there’s something for everyone.
The title of the panel presentation was “Asserting and Defending Against Joint Employer and Franchisor/Franchisee Employment Claim—Tossing the Hot Potato.” My colleagues on the panel, mediated by an Employment and Labor defense attorney, included a class action labor attorney who generally represents employees, a senior attorney from DirectTV, and a Deputy Regional Solicitor from the US Dept of Labor.
During the panel presentation, the audience learned (a) the Dept of Labor intends to extend joint employment as far as it can, (b) the plaintiffs’ bar is closely monitoring this issue, (c) joint employment extends well past the franchising industry, and (d) there does not appear to be a quick and easy solution to the issue.
During the presentation, I continued to emphasize the need for franchisors to review the franchise manuals, agreements and field operations of its franchise system in order to determine whether language or operations procedures have been expanded to the extent that may result in the finding of joint employment. Additionally, inclusion of indemnification clauses in franchise agreements moving forward is also something franchisors should consider. Based on the opinion of DOL, there is a very fine (blurred) line between enforcement of trademark rights and systems standards and control which can lead to joint employment status.
While my time in the Big Easy was as enjoyable as many of my previous trips, clarification of what constitutes joint employment remains as murky as the Mississippi River water which flows around and defines the city of New Orleans.