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NFT: NLRB huge blow to the franchise concept

ctc in ftmyers : 7/30/2014 9:54 am
NLRB ruled that McDonald's is responsible for labor conditions at privately owned franchises. If upheld as it works it's way through appeals probably the death of the franchise industry.

Thoughts?
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It doesn't seem like they "ruled" anything...  
Dunedin81 : 7/30/2014 9:57 am : link
their General Counsel announced...
See tht is a crap ruling  
nygiants16 : 7/30/2014 9:58 am : link
i work for a franchisor i wont say which company and everytime someone buys our franchise its up to them to keep up to the standards of the name they are putting on their signs and if they dont they are terminated...

we should not have to be responsible for what happens at every single place that has our name on it because all we are doing is selling the name we ar enot running that particular property...i think thats stupid that Mcdonals has to keep an eye on every property that has their name...
I don't think it will mean the death of the franchise industry.  
Ira : 7/30/2014 9:59 am : link
It will force corporations to set standards which the individual owners will have to comply with in order to maintain the franchise. Maintaining minimum standards won't force these companies out of business. But it could help small businesses to compete.
To me it reads more along the lines of requiring  
montanagiant : 7/30/2014 9:59 am : link
Franchisers to vet and monitor their franchises more diligently. McDonald's is very controlling of their franchisees when it benefits the, this just makes them do the same when it does not benefit them.

It won't make the Franchise model go away, its too lucrative when done correctly.
Yeah, I think that headline might be inaccurate  
njm : 7/30/2014 10:00 am : link
Sounds like this is a position that the NLRB counsel intends to take.

BTW - Does the NLRB currently have a quorum capable of issuing rulings after the recent USSC decision on recess appointments?
Yeah, this reads more like  
Enoch : 7/30/2014 10:02 am : link
NLRB is requiring McD's to appear in proceedings involving labor practices that are dictated to their franchisees. Makes sense to me-- if they wrote the policies, they should be the folks involved when they are challenged.

If anything comes of it, the change is going to be franchise agreements that are less specific on labor practices.
RE: To me it reads more along the lines of requiring  
njm : 7/30/2014 10:03 am : link
In comment 11786516 montanagiant said:
Quote:
Franchisers to vet and monitor their franchises more diligently. McDonald's is very controlling of their franchisees when it benefits the, this just makes them do the same when it does not benefit them.

It won't make the Franchise model go away, its too lucrative when done correctly.


Disagree. If this indeed becomes the standard, McDonalds could be held liable for a one time screw-up by a franchisee who had been totally compliant with respect to rules and who had been thoroughly monitored for years.
Best article I  
ctc in ftmyers : 7/30/2014 10:09 am : link
could find was on the Times on line edition,

When I linked it and previewed, i came up needing a subscription. If some can link it so it works, it's a much better article.
Hopefully  
Metnut : 7/30/2014 10:13 am : link
this moves forward.

Anything that might improve conditions for workers is OK in my book, especially if the costs for improving said conditions are coming from the large corporations who profit from such workers.
RE: See tht is a crap ruling  
Cam in MO : 7/30/2014 10:16 am : link
In comment 11786510 nygiants16 said:
Quote:
i work for a franchisor i wont say which company and everytime someone buys our franchise its up to them to keep up to the standards of the name they are putting on their signs and if they dont they are terminated...

we should not have to be responsible for what happens at every single place that has our name on it because all we are doing is selling the name we ar enot running that particular property...i think thats stupid that Mcdonals has to keep an eye on every property that has their name...


So you keep an eye on them and want to be able to strip them of their franchise if they don't do what you like, but you don't want to be accountable for anything they do?

Sounds perfectly reasonable.

If this huge blow happens, maybe it will kill franchisors or  
Some Fan : 7/30/2014 10:17 am : link
just change the economics. More risk for the franchisor should mean more upside too.
RE: RE: To me it reads more along the lines of requiring  
montanagiant : 7/30/2014 10:17 am : link
In comment 11786530 njm said:
Quote:
In comment 11786516 montanagiant said:


Quote:


Franchisers to vet and monitor their franchises more diligently. McDonald's is very controlling of their franchisees when it benefits the, this just makes them do the same when it does not benefit them.

It won't make the Franchise model go away, its too lucrative when done correctly.



Disagree. If this indeed becomes the standard, McDonalds could be held liable for a one time screw-up by a franchisee who had been totally compliant with respect to rules and who had been thoroughly monitored for years.


Any law can be taken to the extreme with regards to penalties and judgement NJM. But if McDonald's shows that they have been doing due diligence on the franchisee and that franchisee decides to commit a violation, what will be looked into is if McD's knew about the issue and did nothing, or if they addressed it.

They won't punish them if its something unforeseen on their part.
That's a categorical approach...  
Dunedin81 : 7/30/2014 10:18 am : link
to a decision undertaken by a small number of people that upsets a longstanding way of doing business, one that provides an intermediary between evil big business and the worker in the person of the franchisee. It may be a net positive for the fast food workers, it may not, but it deserves more than a cursory "this is good for the workers therefore I like it."
RE: If this huge blow happens, maybe it will kill franchisors or  
montanagiant : 7/30/2014 10:18 am : link
In comment 11786562 Some Fan said:
Quote:
just change the economics. More risk for the franchisor should mean more upside too.


No doubt Franchise fees will be increased.
Metnut  
ctc in ftmyers : 7/30/2014 10:19 am : link
Unfortunately this will the small business owners who own a few franchises. It makes franchiser responsible for stores they don't own.
RE: RE: RE: To me it reads more along the lines of requiring  
njm : 7/30/2014 10:27 am : link
In comment 11786564 montanagiant said:
Quote:
They won't punish them if its something unforeseen on their part.


I'd say there is a difference in our perceptions of the current NLRB.
McDonalds makes franchises  
Deej : 7/30/2014 10:28 am : link
do as they are told on nearly all aspects of their business. Menus, decor, even napkins are dictated by McDonalds. So McDonalds can easily crack the whip on labor issues too.
RE: Metnut  
Metnut : 7/30/2014 10:29 am : link
In comment 11786574 ctc in ftmyers said:
Quote:
Unfortunately this will the small business owners who own a few franchises. It makes franchiser responsible for stores they don't own.


I don't think it's an unfair result. If the franchiser is going to profit off of his brandname, and is likely going to make sure that the product has similar standards at the different franchises, then the franchiser should also carefully vet the individual owners to ensure that the workers are treated fairly/safely. Put differently, I don't think a franchiser should be able to license out his brand name and "be done with it."

Here, McDonalds has a long list of rules/regulations that its franchisees have to follow. They should amend those rules to be strict regarding labor conditions/wages and should hire people to ensure that such labor rules are enforced IMO.
RE: McDonalds makes franchises  
Metnut : 7/30/2014 10:30 am : link
In comment 11786599 Deej said:
Quote:
do as they are told on nearly all aspects of their business. Menus, decor, even napkins are dictated by McDonalds. So McDonalds can easily crack the whip on labor issues too.


I agree.
RE: McDonalds makes franchises  
montanagiant : 7/30/2014 10:55 am : link
In comment 11786599 Deej said:
Quote:
do as they are told on nearly all aspects of their business. Menus, decor, even napkins are dictated by McDonalds. So McDonalds can easily crack the whip on labor issues too.


Exactly....They control every aspect that deals with branding, location, menu options, building requirements, etc... virtually every single decision is preordained by them.

Their franchise model is about as close to a employer/employee system as legally possible. This just makes them take on some of the liability that a non-franchise store has now.
Metnut  
ctc in ftmyers : 7/30/2014 10:56 am : link
Then as I say, the end of the franchise concept. What small business owner who opens up a store and is successful will want to expand beyond a few that he himself owns?

So McDonald's, who is to be responsible for health insurance, workers comp, liability insurance, etc., for legally incorporated business they don't own and employees not on their payroll.

If this stands, it will affect every kind of franchise you can think of. And there are thousands of them.
Montana  
ctc in ftmyers : 7/30/2014 11:04 am : link
Why have franchises then. End the opportunity for a person to start a small business. Just be corporate. Hire managers. Take the profit for yourself instead of letting local small guys have a chance.

Again, If it stands. It will wipe out the opportunity for thousands to open up and own small locally owned bushiness.
Seems kind of like me and my kids  
Bill L : 7/30/2014 11:07 am : link
I give them my name and a bit of training and nourishing and then when they're in their thirties and living on their own, I don't realy want to get the bill for their fck ups
ctc  
Deej : 7/30/2014 11:38 am : link
First, the NLRB suggestion seems a bit specific to McDonalds -- because McD's is so up in their franchisees' business, they may have more responsibility. They may be more like joint venturers.

Second, you're just overreacting. There is no reason to believe that the difference between the economic viability and unviability of the franchise system turns on whether, in some circumstances, franchisors bear some responsibility for franchisees labor practices. I cant see how this could possibly end franchises as we know them. Maybe some change to practices, sure (I suspect more freedom for franchisees actually, to avoid the McDonalds problem). But people will still become franchisors if they can make money that way. Period.
To the extent that the franchise model was an end run...  
manh george : 7/30/2014 11:49 am : link
around having responsibility for labor practices, yeah, this would make such an end run more difficult and less profitable. Boo freaking hoo.

To the extent that the franchise model is built around the concept of giving individuals who run specific locations incentives to run those locations as efficiently and effectively as possible in order to maximize profits, nope, not a thing changes.
I agree with Deej.  
bob in tx : 7/30/2014 11:52 am : link
Franchisors exert control though you will find " independent contractor" as how the franchisee should be considered in every agreement. What might happen is that franchisers will require that they be listed as an additional insured on all ins. policies & require EPL, D&O etc coverages.that extra cost will be added to your burger & fries.
RE:  
njm : 7/30/2014 11:55 am : link
In comment 11786767 manh george said:
Quote:
To the extent that the franchise model is built around the concept of giving individuals who run specific locations incentives to run those locations as efficiently and effectively as possible in order to maximize profits, nope, not a thing changes.


Franchisee fees aren't going to go up to offset potential liability?
We must defend the right of McDonald's to profit from unfair  
BeerFridge : 7/30/2014 11:59 am : link
labor practices!!!!

Wait, what?
Deej  
ctc in ftmyers : 7/30/2014 12:06 pm : link
You sure? If your going to take all the responsibility, why have the middle man? Easier to use managers.

Why wouldn't it applicable to other franchises.

It's easy to demonize McDonald's. It opens the door for law suits for any thing over decisions made by independent business that franchiser has no control or franchise restriction on.

Personally, I don't think it will ever see the light of day.

Watch any sports broadcast and count the number of national franchises that are advertised. It will affect everyone of them.
RE: Deej  
Deej : 7/30/2014 12:53 pm : link
In comment 11786790 ctc in ftmyers said:
Quote:
Why wouldn't it applicable to other franchises.


Not sure, but read the article you linked, which says "But the NLRB General Counsel contends that McDonald’s HQ exerts such an influence over its franchisees that it should be treated as a joint employer alongside the franchisees." So that is a McDonalds specific fact. Many franchises are little more than licensing deals.

Quote:
If your going to take all the responsibility, why have the middle man? Easier to use managers.


No idea what you mean by "all the responsibility". That's just jumping to a wild conclusion. But to answer the broader question, why does anyone have middle men? Why does Apple sell its stuff thru Best Buy? The answer is pretty simple -- they make more money that way. McDonalds is not primarily in the restaurant business at this point -- it is in the business of generating fees/rents off the McDonalds business. It's probably better for them to have a bunch of small businesses people owning and running restaurants rather than a vast network of top down management. Also, for McDonalds to buy out all its 22,000+ USA locations would probably cost in the $50-80 billion range -- just a massive capital commitment. They dont have that cash lying around.

To be honest, you're coming off as a bit of a loon. Responsibility for one aspect of a business (labor) is now the be-all of the viability of the franchise model?
In no way is Best Buy a franchisee  
njm : 7/30/2014 1:03 pm : link
It's a false comparison. If you look at fast food in particular, the franchisees hew overwhelming towards the McDonalds business model than that of a 3rd party vendor. It would be a very minor step for the NLRB counsel to extend the position taken from McDonalds to many other franchisees
RE: I don't think it will mean the death of the franchise industry.  
steve in ky : 7/30/2014 1:07 pm : link
In comment 11786514 Ira said:
Quote:
It will force corporations to set standards which the individual owners will have to comply with in order to maintain the franchise. Maintaining minimum standards won't force these companies out of business. But it could help small businesses to compete.


I think that most do that already and will pull the franchise if they aren't maintained properly.
njm  
Deej : 7/30/2014 1:23 pm : link
I wasnt saying that Best Buy is a franchise. I was saying that there are a lot of reasons companies use "middle men" in some aspect of their business. Very low on that list is potential joint liability for labor law violations. VERY low.

As for expanding this to other companies beyond McDonalds, yeah, other companies that rise to the NLRB's joint employer test. That's far from all or even a majority of franchises.
RE: njm  
njm : 7/30/2014 1:31 pm : link
In comment 11786967 Deej said:
Quote:
I wasnt saying that Best Buy is a franchise. I was saying that there are a lot of reasons companies use "middle men" in some aspect of their business. Very low on that list is potential joint liability for labor law violations. VERY low.

As for expanding this to other companies beyond McDonalds, yeah, other companies that rise to the NLRB's joint employer test. That's far from all or even a majority of franchises.


I'm not aware of significant business practice differences between McDonalds and:

* Burger King
* KFC
* Wendy's
* Taco Bell
* Chipoltle
* Pizza Hut
* Papa John's

etc. etc.

I'm not quite sure on what you base your conclusion that it wouldn't be a majority.
RE: We must defend the right of McDonald's to profit from unfair  
Bill L : 7/30/2014 1:47 pm : link
In comment 11786782 BeerFridge said:
Quote:
labor practices!!!!

Wait, what?


Why less than anyone else. Maybe not more, but why less? Not just for unfair labor practices, but for anything at all.
RE: RE: njm  
Deej : 7/30/2014 2:03 pm : link
In comment 11786976 njm said:
Quote:

I'm not aware of significant business practice differences between McDonalds and:

* Burger King
* KFC
* Wendy's
* Taco Bell
* Chipoltle
* Pizza Hut
* Papa John's

etc. etc.

I'm not quite sure on what you base your conclusion that it wouldn't be a majority.


Well, first of all I wasnt limiting myself to fast food franchises. There are all sorts of franchises in America. Second of all, I seriously doubt you know all that much about these other franchises. For example, Chipoltle doesnt franchise. So luckily the legal status of employees at these companies will not turn on your personal knowledge of the comparative business practices at those companies.

Luckily, those of us who dabble in the law for a living (and while I'm at it, I'll throw in the fact that my undergrad degree in is labor relations) know that each case/administrative proceeding proceeds on its own facts. So if McDonalds is held liable for misconduct at the franchise level (a big if -- NLRB GC has only authorized suit), that ruling applies to McDonalds. If BK is EXACTLY like McDonalds, the same rule will probably apply. If they're different, that facts applicable to BK will govern. It's not rocket science, but I assure you that the relevant facts are imperceptible to the average customer. The core issue will be HQ control over franchisees. There is no real reason to believe that McDonalds and BK and Wendys and Poppa Johns are all the same in the franchisee/franchisor relationship. In fact, McDonalds has a reputation for being dictatorial -- that's not a knock. Im many ways it is good since it protects that value of the brand/reputation. Other franchisors are obviously less controlling.
RE: RE: RE: njm  
steve in ky : 7/30/2014 2:07 pm : link
In comment 11787020 Deej said:
Quote:
In comment 11786976 njm said:


Quote:



I'm not aware of significant business practice differences between McDonalds and:

* Burger King
* KFC
* Wendy's
* Taco Bell
* Chipoltle
* Pizza Hut
* Papa John's

etc. etc.

I'm not quite sure on what you base your conclusion that it wouldn't be a majority.



Well, first of all I wasnt limiting myself to fast food franchises. There are all sorts of franchises in America. Second of all, I seriously doubt you know all that much about these other franchises. For example, Chipoltle doesnt franchise. So luckily the legal status of employees at these companies will not turn on your personal knowledge of the comparative business practices at those companies.

Luckily, those of us who dabble in the law for a living (and while I'm at it, I'll throw in the fact that my undergrad degree in is labor relations) know that each case/administrative proceeding proceeds on its own facts. So if McDonalds is held liable for misconduct at the franchise level (a big if -- NLRB GC has only authorized suit), that ruling applies to McDonalds. If BK is EXACTLY like McDonalds, the same rule will probably apply. If they're different, that facts applicable to BK will govern. It's not rocket science, but I assure you that the relevant facts are imperceptible to the average customer. The core issue will be HQ control over franchisees. There is no real reason to believe that McDonalds and BK and Wendys and Poppa Johns are all the same in the franchisee/franchisor relationship. In fact, McDonalds has a reputation for being dictatorial -- that's not a knock. Im many ways it is good since it protects that value of the brand/reputation. Other franchisors are obviously less controlling.


So the implication is franchisor would likely better off {liability wise) to lower their standards and demands of their franchisee.
Or just raise  
Metnut : 7/30/2014 2:15 pm : link
the standards/demands when it comes to labor.
Or these corporations can use  
Semipro Lineman : 7/30/2014 2:28 pm : link
their resources to spot check or audit a portion of thier franchisees to ensure compliance with relevant labor laws and other important business practices. It's not a potential death knell for the industry or that big a deal. Some of you guys see any type of regulations and immediately go into OMG mode.
Once again, there are insufficient data to support broad conclusions  
SwirlingEddie : 7/30/2014 2:32 pm : link
However it is always tempting to see these things through the lens of confirmation bias, regardless of what that bias is.

The NLRB statement announcing the counsel's decision was very brief and made reference only to cases related to protests, presumably those arising out of the recent actions surrounding minimum wage rates.

So it is possible that this decision only applies to a very limited set of cases and circumstances where McDonalds took some actions or issued some directives to franchisees directly related to the protests that stepped over the franchisor line as the counsel saw it in this regard only.

Or it is possible that this is a monumental policy change irrespective of existing law or precendent that forever changes the relationship between employer and employee, favorably or unfavorably, depending on your point of view.

For some reason I suspect the former, but will wait for more info before drawing any further conclusions. I will keep in mind however that sometimes small and limited decisions set precendents that then spread far and wide, perhaps unintentionally, so even narrow decisions must be seen in that context.
RE: Montana  
montanagiant : 7/30/2014 5:38 pm : link
In comment 11786682 ctc in ftmyers said:
Quote:
Why have franchises then. End the opportunity for a person to start a small business. Just be corporate. Hire managers. Take the profit for yourself instead of letting local small guys have a chance.

Again, If it stands. It will wipe out the opportunity for thousands to open up and own small locally owned bushiness.

Because its cheaper and more profitable for McD's to do it that way.....They aren't selling franchises because they want to help the community, they do it that way because they can have a virtual corporate store hidden underneath a franchise til that is anything but. This is why McD's was singled out. They have the most control of any franchiser out there andthat is why this came about.
RE: RE: Montana  
Deej : 7/30/2014 6:22 pm : link
Im not sure why some (seemingly ctc) think that McDonalds is some sort of quasi-charity that has franchisees out of the goodness of its heart. McDonalds has franchisees because it would be very, very hard and capital intensive to own 35,000 restaurants. They can make good money with less risk franchising out the restaurant business (they own 15% of locations, I believe more foreign and US urban, where centeral corporate oversight is easier/necessary). They also own the land/structures for a lot of the franchises and get paid "rent" in many instances as a cut of sales.

If McDonalds loses this case, they'll beef up some US franchise labor standards and will have random labor inspections as part of their overall random inspection process. This will probably be a blip on their radar.
Your 100% correct  
montanagiant : 7/30/2014 10:55 pm : link
I don't know of ONE McD's franchise that has ever gone out o business. They are a model of a highly profitable franchise system that has played around with the definition of what exactly a franchiser is for years. Both the franchiser/franchisee make outstanding profit margins. Their workers on the other hand make squat.

In my industry we have been approached multiple times to franchise our services, our services are more of a very specialized niche repair service that takes years for someone to be proficient at it...I actually use McD's as an example in my response as to why we won't do it: "It's not like McDonald's, you don't get the same hamburger at every location".

McD's has been playing on the edge and pushing the envelope on the Franchise model for years. It caught up with them and deservedly so.
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