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.

Franchisee Leads Breakout Session on Disaster Response at U.S. Chamber of Commerce Foundations, 2013 Corporate Responsibility Conference

This week, the U.S. Chamber of Commerce Foundation hosted its Business Civic Leadership Center (BCLC) 2013 Corporate Responsibility Conference, effectively themed The Network Effect: How Business Drives Progress. It was an opportunity for businesses and leaders of corporate responsibility to convene around a variety of issues including energy and water use, woman’s economic empowerment, nutrition, and disaster resiliency.

Mitch Cohen, Franchisee, Dunkin’ Donuts & Baskin-Robbins, and April Schrenker, Manager, The Dunkin’ Donuts & Baskin Robbins Community Foundation, participated in the Tapping Into Community During Disaster Response, Breakout Session. Here, they led a discussion on Corporate Social Responsibility (CSR), and how Dunkin’ Brands’ Community Foundation has grown and operated since its launch after Hurricane Katrina. The Community Foundation provided disaster recovery efforts and donations to the affected victims and areas impacted by Hurricane Katrina. Seven years later, The Community Foundation has evolved into a grassroots campaign with a focus on mobilizing disaster response efforts through Dunkin’ Donuts & Baskin-Robbins’ community based franchise locations nationwide.

Best practices and constructive ideas were shared among business owners, and spokesmen and women from relief agencies like American Red Cross and the Federal Emergency Management Agency (FEMA), aligning with the central point of the session, “One of the best sources of information on how to help disaster impacted community is by having employees on the ground. Whether it is a franchise owner or store manager, businesses can make smarter decisions and determine how best to help by leveraging their on-the-ground network.”

Cohen, franchise owner and operator of 13 Dunkin’ locations, is also Co-Chair of the Community Foundation, which has built a framework that allows the Dunkin’ Brands family to give back to those who help them every day in their communities. When speaking of the Foundation’s recent efforts after Hurricane Sandy, Cohen described how the Foundation likes to base decisions, not just on the ‘here and now’, but on effective response and recovery efforts that, “make a difference six, eight, and twelve months down the road.”

“Establish a mission with whom you’re giving to, and what for. Set expectations and guiding pillars that allow you to define certain criteria and expectations” added Cohen, when speaking of who to give to and for what reasons. The Foundation partners with national nonprofit organizations, in addition to regional and local level franchisees to support three critical issue areas, children’s health, hunger and safety. Since 2006, the Foundation has donated more than $4.4 million to organizations serving their neighborhoods.

Click here to view the 2013 Corporate Responsibility Conference online agenda.

Members of the International Franchise Association joined Senate Majority

Members of the International Franchise Association joined Senate Majority Leader Mitch McConnell (R-Ky.), Sen. John Barrasso (R-Wyo.) and Sen. Marco Rubio (R-Fla.) for a press conference yesterday to discuss burdens that policies being pushed by some Democrats and the administration are placing on franchise businesses’ ability to sell more franchises, hire workers and grow the economy. 

“Franchise small businesses need government to get out of the way in order to continue creating jobs at the rate they have historically,” said IFA President & CEO Steve Caldeira. “We applaud Senate Minority Leader McConnell for echoing that message and urge the administration and all members of Congress to develop bipartisan, pro-growth solutions that help franchise businesses to create jobs.”

“The government itself is the problem now,” said McConnell. “We have to allow  the private sector to do what it does best which is to to grow, expand, and create jobs.”

“In recent years, one of the reasons I have not sought to grow is uncertainty surrounding the health care laws,” said David Barr, Chairman of PMTD Restaurants LLC and its affiliates (a franchisee of KFC and Taco Bell) and Rita Restaurant Corp. (the owner and operator of Don Pablo’s Mexican Restaurants). “Obamacare will force me to either decrease employees or move workers from full-time to part-time employees to avoid paying penalties.”

Unless Congress repeals or significantly changes the health care law, 3.2 million full-time employees and tens of thousands of franchise businesses will be at risk of losing their jobs, according to a recent report prepared by Hudson Institute for the International Franchise Association.

“All of my business income is needed to continue to grow and create jobs,” said Gail Johnson, CEO of Rainbow Station, which is a franchise that offers nationally accredited early childhood education and school age recreation programs. “Taking away income from small business owners like myself  through a tax increase is quite simply  a job smasher.”

IFA has urged Congress to consider permanent, comprehensive tax reforms that encourage job creation by franchise businesses, but that also do not hurt small businesses and franchises that file as individuals. Click here to view IFA’s recent letter to Senators.  

“Small businesses that want to grow and have a track record of success should be able to get loans from lenders, said Bob Dorfman, a Five Guys multi-unit franchisee with 9 stores in Tampa, Fla., 10 stores in Columbus, Ohio, 14 stores open in Houston and South Texas, and a commitment with Five Guys to open and operate 103 total stores. “Lenders should be free from overregulation and scrutiny that’s unnecessarily holding back job creation.

Over 82,000 new jobs and over $10 billion in economic output will be lost in 2011 as a result of lack of credit flow to franchised small businesses, according to the IFA Small Business Lending Matrix & Analysis, Vol. 3.

“We have heard today that the rules and the regulations coming out of Washington are making it harder and more expensive for the private sector to create jobs,” said Barrasso.

“Let’s listen to the job creators and create an environment where they can go out and Americans can do what they have done better than anyone in the history of the world,” said Rubio. “They haven’t forgotten how to go out and start a business. These people haven’t run out of good ideas. They just need a government that makes it easier for them to go out and do that and not harder.”

Posted by Matt Haller, IFA Sr. Director of Communications

In 2006, when Indiana small-business owner Scott Womack purchased a development agreement t

In 2006, when Indiana small-business owner Scott Womack purchased a development agreement to expand his IHOP franchise into Ohio, he had no idea Congress would pass a massive overhaul of the health care system four years later.

Today, one year after that legislative overhaul became law, Womack is very aware of Obamacare — and of its effects on his plans for growth.

Under the year-old law, Womack must provide health insurance to all full-time employees beginning in 2014. Right now, he employs nearly 1,000 full- and part-time workers and already offers insurance to his management staff. He simply does not know how he’ll generate the revenue to do more.

Womack estimates the cost of the law to his company will be 50 percent greater than his company’s earnings — in other words, beyond his ability to pay.

That’s not because his company of 12 IHOP restaurants in Indiana and Ohio is unprofitable. Quite the opposite, in fact. By industry standards, he’s doing well. But labor-intensive restaurants generate profits of just 5 percent to 7 percent per employee.

With fears about how he’ll afford to provide health insurance with those low profit margins, Womack is worried about his expansion plans in Ohio. He can’t exactly cancel his development agreement. But he’ll only be able to fund his new restaurants — and the construction, real estate and manufacturing jobs that would go along with them — if Obamacare is repealed.

“If the health care reform law is not repealed or if the employer mandate doesn’t go away, we’re going to have to take drastic action,” Womack explains.

From his perspective, the law represents Congress’ fundamental misunderstanding of important differences among industries. He’s frustrated that so few lawmakers sought input from people like him — but he’s doing what he can to speak up now to offer a glimpse into the law’s effects on small-business owners.

Posted by Matt Haller, IFA Director of Communications (with permission from The Heritage Foundation)

Do you already miss being at IFA’s 51st Annual Convention? Just because the convention is over, d

Do you already miss being at IFA’s 51st Annual Convention? Just because the convention is over, doesn’t mean the memories can’t live on. Take a few minutes to watch the extended highlight reel of this year’s show. It is sure to help you relive some of the best moments from Las Vegas and share with your colleagues who weren’t able to make it! Enjoy…

Posted by Matt Haller, IFA Director of Communications