IFA Chair Aziz Hashim Speech at IFA Legal Symposium: We Need to Grow Understanding of Franchising

Speaking to a packed room of attorneys and franchise executives, IFA Chairman Aziz Hashim spoke about a new vision of engaging franchise employees and the public during the opening remarks of IFA’s 2016 Legal Symposium. Mr. Hashim drew from his deep experience as both a franchisee and franchisor, noting that the success of the business model in creating a seamless consumer experience has led to the misperception that franchisors employ franchisees’ employees among the public and policymakers.  This misperception, he says, has led to misguided policies like the National Labor Relations Board’s (NLRB) nebulous joint employer standard.

While IFA’s efforts to educate the public, policymakers, and other influencers has been successful at gaining awareness of the issue, the inherent misunderstanding of franchising will take time to rectify. Mr. Hashim’s vision for the future includes part of the training program for every new employee of a franchisee to include an IFA-provided breakdown of what franchising is, and who the employee’s actual employer is. With over 9 million people directly employed in franchised businesses at any given time, it is paramount that employees are able to relay the positive message of franchising and its local impact.  Mr. Hashim’s term as IFA Chairman looks like it will kick off the process of alleviating the misperceptions of franchising, much like his rousing words kicked off a successful IFA Legal Symposium.

Officials Talk Joint Employer & Regulatory Overreach at IFA Legal Symposium

NLRB Member Phillip Miscimarra

NLRB Member Phillip Miscimarra Speaking at IFA’s 2016 Legal Symposium

National Labor Relations Board Member Phillip Miscimarra and U.S. Representative Bradley Byrne (AL-1) electrified the crowd of attorneys at IFA’s 2016 Legal Symposium this week with their respective speeches on the new joint employer standard and other problematic regulations.

Member Miscimarra’s captivating speech used a variety of diagrams stemming from his dissent in the bombshell Browning-Ferris Industries case, wherein the majority’s opinion upended the long-standing joint employer standard. Miscimarra’s primary point was the majority’s opinion in the case does not clearly define how new collective bargaining agreements will be made with clients of contractors and subcontractors. In his view, the nebulous nature of the standard does not provide guidance for many situations, like when a client no longer uses a contractors’ services, or if a new client joins an existing collective bargaining agreement relationship. This nebulousness results in widespread uncertainty for small business owners, who no longer know for sure if their contractual relationships are in compliance with the law.

Rep. Byrne began his speech speaking about unions’ influence on the current administrations executive agencies, citing the push for ‘card check’ legislation as evidence waning union membership is driving union leaders to seek extraordinary concessions. Furthermore, Rep. Byrne noted the importance of a balanced dialogue on the pros and cons of unionization in the context of the persuader rule, saying the current “playing field is imbalanced”. The persuader rule would make it much more difficult for small business owners to seek out advice on labor law and union matters and also damages attorney-client privilege, as well as limiting information available to employees considering unionization.

A co-sponsor of the Protecting Local Business Opportunity Act of 2016, Rep. Byrne spoke at length about the negative effect the revised joint employer standard will have on franchise small business growth. He also talked about his son, whose first job at a restaurant taught him more about the real world than four years of business school, and how overregulation kills opportunities for young people trying to get their first job on the path to upward mobility.

Regardless of who is in the White House next year, it should be encouraging for franchise businesses to know there are agency officials and members of Congress like Rep. Byrne who remain concerned and active in pushing back regulatory overreach which is suppressing businesses and individuals’ growth potential.

Cross Borders Without Leaving Home at the International Franchise Expo

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The 2015 International Franchise Expo attracted visitors from 122 countries. Expectations of similarly big international numbers in 2016 give U.S. franchisors the chance to explore global growth without crossing a border.  The IFA sponsored Expo takes place June 16th to 18th at the Javits Center in New York City.

A key reason that so many attendees at Expo are international is the U.S. Department of Commerce’s International Buyer Program (IBP).  As an IBP certified event, the commercial sections of U.S. Embassies and Consulates recruit pre-screened international buyers to attend the Expo and meet with U.S exhibitors.  The International Buyer Program produced 40 investor delegations to the International Franchise Expo in 2015 alone.

International franchising now also means franchisors entering the US.  As franchisors from outside the U.S. grow in scale and sophistication, many target the largest franchise economy in the world for expansion, seeking to follow the footsteps of IFA members like, InterContinental Hotels, Kumon, Illy, Tim Horton’s, Bonchon, Paris Baguette and Pollo Campero.  The 2016 International Franchise Expo will include 40 international exhibitors from 17 countries, including pavilions from Japan, Korea and the United Kingdom.

Educational programs related to international franchising enhances the value of participating.  Many of these educational sessions are for CFE credit.  Internationally oriented Seminars and Symposia at this year’s Expo include:

  • Master Franchising – Why do Some Succeed and Others Struggle
  • Structuring Your Franchise Network Expansion
  • Selling Franchises Internationally Without Getting Into Trouble
  • Global Franchise Expansion:  Strategies for Lucrative & Planned Growth
  • Going International- Moving Intelligently Into International Expansion
  • Selecting the Best Franchise Structure for Domestic and International Expansion
  • International Expansion: Master Franchising and Other Structures
  • Hidden Franchise Opportunities in the Middle East
  • An Overview of Key U.S. Trends and Regulatory Issues for International Franchisors
  • Strategies for Franchising into the U.S. Market
  • Navigating the U.S. Marketplace
  • Important Steps for Franchisors Considering Entering the U.S. Market

To learn more and participate visit: http://www.ifeinfo.com/

To get free passes to the Expo courtesy of the IFA click here.

When Academics Fail to Get the Full Picture on Franchising

Last month, the University of Pennsylvania’s Wharton School of Business Management posted a blog (Knowledge@Wharton) entitled: “How the McDonald’s Franchise Labor Case Could Upend an Industry.”

Indeed.

Wharton, of course, is one of the most respected business schools in the country.

Which makes the blog that much more incredible. The authors completely fail to understand the “joint employer” issue and the broader workings of the franchise model.

The authors were Peter Cappelli, the Director for Wharton’s Center for Human Resources, and Cesar F. Rosado Marzan, a contracts, labor law, and comparative labor law professor at the Chicago-Kent College of Law.  Also included were quotes by Janice Bellace, a professor of legal studies and business ethics/professor of management at Wharton, whose expertise is in the area of labor and employment law and employment relations.

These are surely qualified scholars on labor issues, but something is missing.  Did anyone think to get the views of a franchise business management expert or a franchise attorney?  Someone who is an expert on the franchise business model?

To the labor professors, a franchise relationship looks like an employment relationship, but this comparison brings new meaning to the trite expression that “if you are a hammer, everything looks like a nail.”

For example, Professor Cappelli states there are two types of franchises in vogue.  One is the “trade name franchise,” where the franchisee gets the rights to use the franchise owner’s brand name. The other is an “operating agreement,” which McDonald’s uses, where it sets the rules on how their franchisees must operate the restaurants.

Herein lies the error; there is no such thing as a “trade name franchise.” Any license of a trademark must be accompanied by controls on quality and use of the brand or the trademark “owner” will likely forfeit their rights to the mark, which would be embarrassing to say the least.  The authors should have reviewed the Lanham Act before commenting on the franchise business model.

The authors also mention an “operating agreement,” where there are “rules” on how the franchisees must operate the restaurants. I think they must mean a business format franchise, where the franchisor transfers know-how to the franchisee in addition to the right to use the names and marks.

The brand standards associated with the marks and system are fundamental to franchising—without them, the consuming public would have no assurance as to the origin of the goods and/or services branded and would not know if the expected quality is there. Standards in preparing the hamburger—temperature, patty thickness, safe handling instructions, etc. ensures no one gets sick. Menu consistency guarantees mom and dad know when they pull off the road at Junior’s request who has seen the brand on a sign, that Junior’s favorite will be served at the restaurant. And so forth. But fast food is not the only franchised business. Practically any business can be franchised if the operating know-how is replicable.

Professor Cappelli continues, “in the operating agreements you can tell franchisees pretty much how to do everything.”

What?

In each and every franchise system, the franchised businesses are independently owned and operated. These franchisees are entrepreneurs. While they must follow certain rules relating to brand standards, they set their own course as to everything else. They determine their day-to-day functions of their businesses. They determine who to hire and fire, the hours of the employees, the pay scale, and the duties of each employee, just like any other small business owner. And it’s their capital that finances the business; their capital is at risk.

Further underscoring the authors misunderstanding of franchising was Professor Rosado’s statement lumping McDonald’s and Walmart in the same category. While they are both “large corporations,” Walmart is not a franchise.

Professor Cappelli asserts, “Over the last generation, there have been lots of efforts by employers and businesses to get out from under the requirements of employment law.” So by implication, franchising is simply a ploy to avoid employment law compliance.

Nothing could be further from the truth.

The business format franchise in its current form has been around since the 50’s. Franchising now accounts for 5.6% of the GDP and 9.1 million direct jobs. It is successful because it harnesses the extraordinary drive of the entrepreneur.

In a public policy blog, one must consider the public policy implications of taking a business model that has been around for 60+ years, and has become a substantial part of the economy, and “upending” it. At the very least, this piece lacked insight by failing to include franchise experts and instead solely considered the thoughts of labor/employment professors.

And as relates to public policy, Professor Cappelli even says “[p]art of the knowledge [imparted by the franchisor to the franchisee] is, frankly, how to employ low-wage unskilled people and get them to turn out this consistent, stable product.  Maybe it is not a bad thing to take a person without work experience and teach them how to make a good product, interact with the public, show up on time, and maintain a professional appearance – things needed to get and keep a job.  For most workers, a fast food job is not their ultimate goal—rather, it is a first step, a bridge to a better place in the workforce.

So Knowledge@Wharton? You’re absolutely correct for diving in on a significant labor policy, but you should not have made the mistake of only analyzing one side of the equation. It could hurt America’s economy and deprive entrepreneurs of their livelihood.

IFA Launches International Toolkit

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The International Toolkit is now live at franchise.org/InternationalToolkit.  The Toolkit is designed to be a core resource for IFA Members interested in international franchising.  At the heart of the Toolkit are webinar courses that comprise a curriculum in franchising across borders.  Six courses are now accessible with more to come.  The Toolkit can be found prominently featured on the main international page of IFA’s website.

The free courses now available are:

  • Preparing Your Company to go Global, presented by Edwards Global Services
  • Development Models for Global Expansion, presented by DLA Piper
  • Legal and Regulatory Requirements of International Franchising, presented by Gray Plant Mooty
  • Drafting and Negotiating an International Franchise Agreement, presented by Dickinson Wright
  • Commercial Strategies to Export a Franchise to the U.S., presented by MSA Worldwide
  • Legal Aspects of Bringing Your Franchise to the U.S. – Myth v. Reality, presented by Gray Plant Mooty

IFA’s International Toolkit offers a number of resources beyond the courses. IFA has partnered with Getting the Deal Through Guide to bring members profiles of franchise laws in 42 countries. In an effort to support your international development, IFA has posted a calendar of international franchise shows in 2016 online.

Country profiles on IFA’s site will soon be dramatically improved. IFA worked with the Department of Commerce and World Bank to rebuild these pages so fresh data relevant to franchise companies is constantly available. Finally, if you want personal feedback, look at the international tracks of the FranShip program to get mentoring from an IFA member expert.

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