House Hearing Demonstrates New DOL Regulations Will Hurt Businesses and Workers

On Wednesday, June 10th, major regulatory changes expected from the U.S. Department of Labor (DOL) this summer were the subject of a House Subcommittee on Workforce Protections hearing. The forthcoming changes include the potential doubling of the salary threshold for overtime exemption and a new test for the primary duties of overtime-exempt workers. These modifications should concern franchise businesses, as they could severely limit opportunities for lower-level employees to advance in rank, limit the flexibility of business owners to manage their workers as they see fit, and increase compliance and payroll costs.

Subcommittee Chairman Tim Walberg (R-MI) shared his hope that despite an “administration notorious for overreach”, the Department of Labor should listen to employers’ concerns, and put forward a “proposal that encourages rather than stifles productivity, personal opportunity, and economic growth.”

The Subcommittee heard testimony from industry experts and academics regarding the current and proposed regulatory framework. While the witnesses disagreed in some aspects, they all agreed that the current enforcement structure of the Fair Labor Standards Act (FLSA) of 1938 needs to change. Three of the key witnesses were: Seth Harris, former Acting Secretary of Labor, Jamie Richardson, a Vice President of White Castle, Inc., a well-known quick service restaurant chain and Leonard Court, a labor lawyer and member of the U.S. Chamber of Commerce Labor Relations Committee.

The majority of Mr. Harris’ testimony addressed why the DOL should prioritize combating income inequality by raising the Federal minimum wage and increasing the salary threshold. To back up his claims, he relied on his theory that workers will see pay increases because employers will be forced to reclassify previously overtime-exempt workers as hourly workers, and these workers will then get more 1.5x pay for overtime for the work they previously did on salary.

Mr. Harris’ theories were countered by Mr. Richardson of White Castle, Inc., whom represented the views of many private-sector companies. Mr. Richardson explained that these new regulatory changes will add significant compliance costs, drive down worker opportunities and disrupt business in a negative manner. For example, of the over 400 White Castle restaurants, 445 of the 450 managers started as a cashier or a line cook, and worked their way up. If the primary duties test for a salary employee is narrowed based on strict percentages of time spent on managing, there will no longer be as many opportunities for lower-level employees to get managerial experience necessary for this advancement process. This is because a strict definition of primary duties will no longer afford many managers the flexibility to lead from the front and help out with non-managerial duties as needed. Employers will be forced to choose between classifying a worker as strictly management, and strictly hourly, which will in turn, reduce the amount of managers it can hire. It will also reduce opportunities for workers who depend on the ability to work outside the office to promote flexibility, because they will now fall under strictly hourly regulations, and out-of-office work is hard to measure on an hourly basis.

Contrary to Mr. Harris’ suggestion that these overtime changes would result in additional hours for many workers, Mr. Richardson and another human resources professional on the panel testified that- a reduction of salaried positions will also lead to reduced hours, reduced pay, and a feeling of demotion by these formerly salaried employees.  In addition, Mr. Richardson noted an Oxford University study on the effects of an increased salary exemption, which found that an increase to a salary exemption limit of $808 per week, would affect 1.7 million restaurant workers, and would cost business owners $5.2 billion per year. These increased costs will have a negative impact on raises, health benefits, and generous leave policies.

Leonard Court, a member of the U.S. Chamber of Commerce’s Labor Relations Committee, testified about how unfair DOL enforcement techniques create a negative environment for businesses. He cited numerous examples about how Wage and Hours Division investigators have been using a variety of “questionable” tactics to pressure business owners and human resources professionals into unfair and possibly unjustified settlements. Mr. Court also expressed concerns that the DOL needs to release more administrative interpretations of existing law, in order to give businesses more guidance on how to effectively comply with a complex web of regulations.

Among other issues, the three most concerning tactics employed by the DOL were: deliberately pressuring businesses not to use legal counsel, compelling immediate settlements by threatening litigation, and using bait and switch techniques to grab double punitive damages for new cases by using settled ones as admissions of guilt. These tactics result in an enforcement environment that, in the words of Mr. Court, has shifted from an approach of “cooperation and education to one of confrontation and coerced settlement.” Mr. Court cited one case that demonstrates this attitude, where despite months of investigation and six figures of legal fees, the WHD found no wrongdoing by the employer. The tactics and methods of the DOL are even more concerning in light of the Obama Administration’s authorization of expansive funding for franchise-specific Wage and Hour Division investigators.

The final version of these regulations is expected to be released soon, and it appears the potential changes are already creating uncertainty for businesses. As witnesses like Mr. Court and Ms. Berberich, a member of the Society of Human Resource Management observed, more helpful changes the DOL could make include adding clarity to the laws through opinion letters, and by promoting flexibility for the new generation of tech-savvy workers. Written transcripts of witness testimony can be found here, and the video of the full hearing is available here.

Join the First IFA International Toolkit Webinar on June 23rd

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The international articles by IFA supplier members in the June issue of Franchising World Magazine are the first manifestation of the “IFA International Toolkit”.  IFA is shaping the Toolkit with the intent of it becoming a core resource for franchisors and franchisees interested in international franchising.  The International Toolkit will feature webinar courses that collectively comprise a curriculum in international franchising.  The Toolkit will be branded and located prominently on the main international page of IFA’s website.

The first of these webinars “Choosing A Deal Structure For International Franchise Expansion” will be presented by DLA Piper on Tuesday, June 23rd from 2- 3:15 pm ET.

During the free webinar DLA partners with deep international experience will discuss one of the essential questions for franchisors expanding abroad – what expansion model should be used for entering a foreign market? This webinar will examine different scenarios, drawn from real world experience, designed to illustrate how the choice can be made most effectively, and what factors might be considered in choosing one vehicle over another.

 Presenters

Mike Brennan, Partner, DLA Piper
Erik Wulff, Partner, DLA Piper
Tao Xu, Partner, DLA Piper

    Click here to register

Franchising Looks to the Future via NextGen Franchising Program

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You’ll have to wait until the IFA Annual Convention to participate in the launch of the NextGen in Franchising program. But you might be surprised to learn the scope of this global competition as the IFA Educational Foundation leads the way in recognizing the huge pool of talent available in young entrepreneurs from around the globe.IFANextGenContestLogo_Final

Quick Facts

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  • 450 applications from 46 countries.
  • The 50 winners represent 22 countries.
  • 70 percent of applicants were men, 30 percent were women and 20 percent were students.
  • Winners came from Australia, Brazil, Canada, Croatia, Germany, India, Iraq, Jordan, Kenya, Malawi, Malaysia, Mexico, Morocco, Nepal, New Zealand, Nigeria, Peru, Romania, Somalia, South Africa, Uganda, United Kingdom and the United States.

Winning Concepts

Water salinization systems, eyesight clinics, roadside reflective strips, mobile made-to-order gelato, recycling plants, an indoor tennis facility, study class notes, emergency baby clean up, custom dog breeding, global education awareness and much more!

Business Challenges

The top three challenges were identified as financial strategy (45 percent), development of the idea (26 percent) and development of a business plan (19 percent).

Learn more about the NextGen program here.  Don’t forget to attend the NextGen in Franchising Network Reception, Summit and Roundtables Feb. 15-16 during the IFA Annual Convention in Las Vegas.

 

 

 

 

Legal Challenge Against Part of Seattle Minimum Wage Law Moves Forward

The legal challenge against the discriminatory provisions of Seattle’s new minimum wage law is taking an important step forward. The International Franchise Association and Seattle franchisees last June filed a lawsuit in U.S. District Court to challenge the provisions of the new law that discriminated against small franchise businesses. Then in August, the IFA requested a preliminary injunction to stop the discriminatory provisions of the minimum wage law from taking effect.

U.S. District Court Judge Richard A. Jones has now set oral arguments on that request for a preliminary injunction for 9 a.m. PST on Tuesday, March 10.  This will be the first time that arguments will be made on the legal challenge to the new law in person.  The hearing will be before Judge Jones at the U.S. District Courthouse in downtown Seattle.

Paul D. Clement, a partner at the law firm Bancroft PLLC and a former U.S. Solicitor General, is expected to represent the IFA and the Seattle franchisees at the March hearing.  IFA and five Seattle franchisees sued Seattle in June seeking to stop the city from treating franchisees as large, national companies rather than the small, locally-owned businesses that they are.

Seattle’s ordinance requires large businesses, defined as those with more than 500 employees, to raise the minimum wage they pay their employees to $15 an hour over three years starting April 1, 2015. Smaller businesses get seven years to phase in the wage increase. But at the request of the Service Employees International Union (SEIU), the law treats a single hotel, print center, restaurant or in-home health care provider as if it employs more than 500 people due to its affiliation with a national chain, even if it only employs five people, thereby creating an uneven playing field.

The city’s ordinance willfully categorizes small, independently-owned franchise owners as big, out-of-state businesses, a violation of the Commerce Clause of the U.S. Constitution. The lawsuit argues that the Seattle ordinance defies years of legal precedent clearly defining a franchisee as an independent local business owner who operates separately from its franchisors that provide brand and marketing materials, based on the payment of an initial franchise fee and ongoing royalty payments to use the brand’s trademark.

Judge Jones is likely to decide on the preliminary injunction before the law takes effect on April 1. Regardless of the ruling on the injunction, the lawsuit against the franchisee provisions of the new law will continue.  

The injunction – and the lawsuit – seek to stop only the provisions of the new law that discriminate against franchise businesses. If the injunction is granted, the new minimum wage law still takes effect. Small franchise businesses, however, would adopt the $15 minimum wage on the same 7-year timetable as other small businesses, instead of the 3-year schedule currently required in the ordinance.     

To learn more about the preliminary injunction, read IFA’s motion for the injunction here, and the IFA’s further briefs on the injunction here and here.

New Year, New Challenges, New Resources

The franchise industry, a principal job and business generator, experienced a variety of challenges in 2014 and some of them are likely to carry over into 2015. Among the issues were the redefinition of the franchisor-franchisee relationship as joint employers and assaults on the industry in the form of minimum wage increases.

You’ll soon learn what our 2015 board of directors have to say about these and other issues affecting the industry in a feature article that is part of the January issue of Franchising World magazine.  And as is the association’s practice, it will meet these challenges head on.  Educating its members, as well as lawmakers and policymakers is a primary activity.

IFA launched a new website for franchisees that provides key guidance on labor and workforce issues. The Franchise Labor & Workforce Hub serves as a resource for franchise business owners looking to learn more about current labor and workforce challenges facing employers, as well as best practices for compliance.  Members can get involved to protect the business and the franchise model by joining the Franchise Action Network.

Another important area for the association is increasing the focus on franchisee engagement. One way to foster engagement is through the introduction of a new communications tool.

The Franchisee Rundown,” a new monthly franchisee-focused IFA newsletter that was recently launched, was created to ensure that franchisees will receive a steady flow of accurate information about the industry they’re helping to build and expand.

Working together, franchisees, franchisors and suppliers can remind our audiences of the value and numerous contributions made by the franchise industry to local communities nationwide.