http://www.bluemaumau.org/frontpagestories en Canada-Based Tim Hortons Franchisee Association Announces New U.S.-Based Group http://www.bluemaumau.org/15951/canadabased_tim_hortons_franchisee_association_announces_new_usbased_group <!-- google_ad_section_start --><p>Following on the heels of its own formation in March, the Great White North Franchisee Association (GWNFA), a Tim Hortons independent franchisee organization, announced today the formation of its U.S. counterpart, the Great White North Franchisee Association USA (GWNFA USA). The new group is represented by American attorneys Robert Zarco and Robert Einhorn of Zarco Einhorn Salkowski &amp; Brito P.A.</p> <!--break--><!--break--><p>The new alliance was launched to provide a united voice for Canada-headquartered Tim Hortons franchisees in the U.S., who are concerned about the alleged increasing mismanagement of Tim Hortons franchise operations by The TDL Group Corp. (TDL) (<a href="https://www.bloomberg.com/research/stocks/private/snapshot.asp?privcapId=2536083" target="_blank">the franchisor</a>) and its parent company, Restaurant Brands International (RBI) (NYSE: QSR, TSE: QSR).</p> <p>Like many a franchisor before it, <a href="http://www.franchisetimes.com/news/June-2017/Tim-Hortons-Suit-Need-Not-Have-Happened-Attorney-Says/" target="_blank">RBI refuses to talk to its franchisee association</a>, the GWNFA, saying it works instead with the Tim Hortons franchisee advisory council. Advisory councils are what their name says, advisory in nature. They support a franchisor through advice, which is easily ignored. In contrast, franchisee associations are by the very nature of their formation and structure more independent and more clearly advocates for their respective franchisee groups.</p> <p>The GWNFA was behind a class action suit filed on June 19, 2017 against RBI, TDL and company executives for breaching their obligations to Tim Hortons store owners in Canada.</p> <p>The Canadian and U.S. associations plan to work together to resolve their problems with RBI&rsquo;s management, which according to today&#39;s GWNFA announcement includes Restaurant Brands International:</p> <ul> <li>receiving hidden vendor&nbsp;kickbacks, which depress franchisee profits from higher product and service costs</li> <li>imposing new arbitrary standards&nbsp;designed&nbsp;to steal restaurants from franchisees</li> <li>intimidating franchisees</li> <li>robbing franchisees of their ability to sell their franchise businesses at a fair price</li> <li>looting&nbsp;the franchisees&#39; ad fund</li> </ul> <p>&ldquo;The long-term success of franchise systems like Tim Hortons depends on trust in the franchisor and a fair and equitable distribution of profits,&rdquo; said Robert Einhorn of ZESB. &ldquo;Since taking ownership, trust in RBI has disintegrated and it has aggressively imposed changes to the system without consultation and with contempt for the financial well-being of franchisees in the front line.&rdquo;</p> <p>Membership in the U.S. association includes almost half of all U.S.-based franchisees, including Tim Hortons&rsquo; three primary U.S. markets: Ohio, Michigan and New York.</p> <p>RBI, which also owns Burger King and Popeyes, is controlled by Brazilian private equity firm 3G Capital. According to <a href="https://www.theglobeandmail.com/report-on-business/tim-hortons-franchisee-row-moves-south-of-the-border/article35461090/" target="_blank">Marina Strauss of Canada&#39;s The Globe and Mail</a>, &ldquo;3G has also been involved in the takeovers of food companies Kraft and Heinz, as well as beer giants such as Anheuser Busch, where executives have also overseen aggressive cost-cutting drives and, in the process, shaken up those entire industries.&rdquo;</p> <!-- google_ad_section_end --> http://www.bluemaumau.org/15951/canadabased_tim_hortons_franchisee_association_announces_new_usbased_group#comments Franchisee rights Tue, 27 Jun 2017 00:56:25 +0000 BMM Staff 15951 at http://www.bluemaumau.org Trump Selects Republican Lawyer for NLRB Seat to Roll Back Policy Changes http://www.bluemaumau.org/15949/trump_selects_republican_lawyer_nlrb_seat_roll_back_policy_changes <!-- google_ad_section_start --><p>President Donald J. Trump thoughtfully nominated Washington attorney Marvin Kaplan to sit on the National Labor Relations Board, no doubt hoping to nudge the agency toward a Republican majority that could overturn a number of decisions that have irritated the business world.</p> <!--break--><!--break--><p>If confirmed by the Senate, Marvin Kaplan of Kansas will serve on the NLRB for the remainder of a five-year term expiring August 27, 2020.</p> <p>This latest nomination comes on the heels of Trump&#39;s selection of Philip A. Miscimarra (pictured below) last January to head the NLRB, the government&#39;s main labor law enforcement agency. At that time, Miscimarra, who has been a frequent critic of the actions of its Democratic majority, was the only Republican on the board. When the announcement was then made, Miscimarra vowed, &quot;I remain committed to the task that Congress has assigned the board, which is to foster stability and to apply the National Labor Relations Act in an evenhanded manner that serves the interests of employees, employers and unions throughout the country.&quot;</p> <p><img alt="" src="http://www.bluemaumau.org/sites/default/files/062617_1422_TrumpSelect1.jpg" style="float: right; margin-left: 5px; margin-right: 5px;" width="145" height="217" />The <a href="http://www.washingtonexaminer.com/trump-taps-republican-miscimarra-to-head-labor-board/article/2613051">Washington Examiner reported</a> that Miscimarra replaced Mark Gaston Pierce, whose position will expire on August 17, 2018. It said the only other board member is Lauren McFerran, whose term end in 2019. That left the five-member board with two vacant seats.</p> <p>The Examiner report also stated, &quot;Once a fairly obscure federal agency, the board became highly activist during Obama&#39;s administration, seeking to expand and reinterpret existing federal rules to expand its reach. Miscimarra has been a frequent critic of those efforts.&quot;</p> <p>The biggest change came in 2014 when the board charged McDonald&#39;s Corporation as a &quot;joint employer&quot; in a series of unfair labor practice complaints against franchise restaurant chains, even though the franchisees were mostly privately owned, and therefore legally separate businesses, the Washington Examiner explained. &quot;The labor board has charged several other businesses under this expanded joint employer definition since then. Miscimarra has repeatedly slammer this approach in dissenting opinions,&quot; the report stated.</p> <p>The Examiner report continued saying that when the NLRB ruled last year that McDonald&#39;s could not subpoena evidence to buttress its claim that it was merely protecting its company brand against a coordinated public relations campaign by organized labor, Miscimarra compared it to a murder suspect being barred from arguing that he acted in self-defense.</p> <p>Miscimarra explained <a href="http://www.washingtonexaminer.com/board-deals-blow-to-mcdonalds-defense-against-labor-charges/article/2586332" target="_blank">in a dissent</a> about six times as long as the majority opinion, &quot;It is not appropriate at this juncture to determine whether the &#39;brand protection&#39; defense has merit. McDonald&#39;s has a right to pursue this defense to the extent it has a good-faith relation to matters raised in the complaint.&quot;</p> <p><a href="http://mobile.reuters.com/article/idUSKBN19B2AP">Reuters</a> reported last week regarding Trump&#39;s latest NLRB selection, that Marvin Kaplan is currently with the federal Occupational Safety and Health Review Commission, and must be confirmed by the U.S. Senate. It says NLRB &quot;has been controlled by Democrats for nearly a decade, and they currently have a 2-1 majority with two vacancies.&quot;</p> <p>The report adds, &quot;The Board, when fully stocked, includes three members from the president&#39;s party and two from the opposing party. Under Trump, lawyers and business groups expect the board to roll back a series of policy changes adopted during the administration of former President Barack Obama.&quot;</p> <p>Responding to Trump&#39;s nomination last Monday, the International Franchise Association and the National Restaurant Association praised Kaplan&#39;s appointment, saying he and a second nominee who Trump is expected to name anytime would bring more balance to the board.</p> <!-- google_ad_section_end --> http://www.bluemaumau.org/15949/trump_selects_republican_lawyer_nlrb_seat_roll_back_policy_changes#comments Politics Attorney Marvin Kaplan NLRB head Philip A. Miscimarra President Trump nomination Mon, 26 Jun 2017 14:22:30 +0000 Janet Sparks 15949 at http://www.bluemaumau.org US Secretary of Labor Withdraws Joint Employment, Independent Contractor Informal Guidance http://www.bluemaumau.org/15946/us_secretary_labor_withdraws_joint_employment_independent_contractor_informal_guidance <!-- google_ad_section_start --><div class="photo right"><img alt="" src="http://www.bluemaumau.org/sites/default/files/resize/062117_1931_USSecretary1-320x256.jpg" style="height: 256px; width: 320px;" width="320" height="256" /> <div class="caption"><span style="font-size:10px;">Secretary of Labor Alexander Acosta</span></div> </div> <p>U.S. Secretary of Labor Alexander Acosta announced earlier this month the withdrawal of the U.S. Department of Labor&#39;s 2015 and 2016 informal guidance on joint employment and independent contractors. </p> <!--break--><!--break--><p> Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department&#39;s long-standing regulations and case law.</p> <p>The department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.</p> <p>While the International Franchise Association, representing franchisors and franchisees, applauded the DOL decision to rescind the Administrator&#39;s new interpretations of joint-employer liability, saying &quot;it is one of the most costly and burdensome regulations impacting the franchise business model,&quot; Bob Purvin, chairman of the American Association of Franchisees &amp; Dealers, said the action is a &quot;mixed blessing for franchisees.&quot;</p> <p>&quot;On the one hand, the threat of joint employer classification has clearly negatively impacted many franchisees, including the withdrawal of vital HR support by many &#39;threatened&#39; franchisors. On the other hand, the joint employer doctrine has given franchisees ammunition to achieve greater autonomy and certainty of &#39;business ownership&#39; of their franchises businesses,&quot; Purvin explained.</p> <p>The AAFD chair said the doctrine had also opened doors to franchisee associations to provide services and purpose of benefit to both franchisors and franchisee constituents. &quot;The AAFD has long urged franchisees to leverage the threat that their franchisor may be deemed the joint employer of a franchisee&#39;s employees to achieve contractual assurances of equity ownership of the franchised business. A franchise agreement and culture that clearly defines a franchisee as an independent business owner has never been threatened&mdash;only franchise systems that have crossed a line of control over franchise operations were impacted.&quot;</p> <p><strong>Other reaction outside franchise community </strong></p> <p>The Bossier Chamber of Commerce, a private, non-profit organization in Louisiana that partners with the U.S. Chamber of Commerce, said the withdrawal of the two Obama-era interpretive bulletins covering employee misclassification and the joint employer standard is good news, but added that it does not solve the underlying joint employer problem created by the NLRB. &quot;That will have to await Senate confirmation of two new Republican members on the Board, which can then overturn Browning Ferris. But until then, we&#39;ll count this latest action as a win.&quot;</p> <p>The Bossier Chamber explained the two interpretive bulletins in more detail:</p> <p>Interpretive Bulletin <a href="http://click.uschamber.com/?qs=03b7e19dcc9ec2c8f24407f62609e886901f9f31e8320452ff65effab1044dda7a0c965731cb2491cc67884ef20a5fd3">2015-1</a> dealt with misclassification of independent contractors, and said that the Wage and Hour Division would view the Fair Labor Standards Act&#39;s (FLSA) &quot;suffer or permit&quot; language in an extremely broad fashion. The 15-page document could essentially be boiled down to one point: &nbsp;DOL felt that there were very few instances where someone was actually an independent contractor as opposed to a bona fide employee.</p> <p>In the bulletin, the Wage and Hour Division expressed the opinion that limiting the circumstances under which someone could be considered an independent contractor would offer greater legal protections to workers. &nbsp;But of course, there was another angle as well. &nbsp;Independent contractors are not eligible to unionize, so reducing the ranks of independent contractors means broadening the pool of individuals who could become union recruits.</p> <p>Interpretive Bulletin <a href="http://click.uschamber.com/?qs=03b7e19dcc9ec2c8616f47e0dfcea6b63df0223a3278bf5afa9ae2f59ffe4e32a833511ed6208e96fb58f0bb9a877220">2016-1</a> dealt with the application of the FLSA&#39;s joint employer doctrine. &nbsp;In many ways, this was DOL&#39;s attempt to expand upon the National Labor Relations Board&#39;s (NLRB) campaign to extend the reach of the joint employer standard under the National Labor Relations Act, as laid out in the infamous <a href="http://click.uschamber.com/?qs=03b7e19dcc9ec2c840ce91f2273e8a6abed68fc12927c74c9b210556c80582da23112fd75407aae21f3eb13aacb08db1">Browning-Ferris</a> decision. &nbsp;In the bulletin, the Wage and Hour Division argued that the concept of &quot;vertical&quot; joint employment, as spelled out in the regulations implementing the Migrant and Seasonal Agricultural Worker Protection Act, should also be applied to the regulations implementing the FLSA. &nbsp;One might have thought that the way to update the FLSA regulations was through the formal regulatory process rather than an interpretive bulletin, but that is now a moot point.</p> <p>The upshot of Interpretive Bulletin 2016-1 was that a broader universe of businesses faced potential liability as joint employers under the FLSA. &nbsp;This expansion of joint employer liability was also the goal of the Browning-Ferris decision, as well as the NLRB&#39;s <a href="http://click.uschamber.com/?qs=03b7e19dcc9ec2c8c34c38466bc53f51dbd691f4741e86aec7550aa681c0cf2e2a9143ac7c00bc7ef25c89a87ecf433f">litigation</a> claiming that McDonald&#39;s corporation is a joint employer with its franchisees. &nbsp;Not surprisingly, this all coincided with the Service Employees International Union&#39;s (SEIU) <a href="http://click.uschamber.com/?qs=03b7e19dcc9ec2c8b86e17fd5a1604e4ca1cf4843777ff9f74a77154af1f42bcdba8a50e54029982e4578d22b257ddf2">campaign </a>to unionize fast food workers, which depends heavily on proving joint employment status throughout the fast food industry.</p> <p><strong>-- </strong></p> <p><strong>Related Article: </strong></p> <p><a href="http://www.reuters.com/article/us-usa-labor-idUSKBN18Y2PZ" target="_blank">U.S. Labor Department Rescinds Obama-era Rule on Joint Employment</a><strong> </strong>(Reuters)</p> <!-- google_ad_section_end --> http://www.bluemaumau.org/15946/us_secretary_labor_withdraws_joint_employment_independent_contractor_informal_guidance#comments Politics AAFD Bob Purvin Chair Browning Ferris decision Interpretive Bulletin 2015-1 Interpretive Bulletin 2016-1 Secretary of Labor Alexander Acosta Wed, 21 Jun 2017 19:31:31 +0000 Janet Sparks 15946 at http://www.bluemaumau.org Instant Tax Service Franchisor Convicted of Conspiracy, Fraud, Other Related Crimes http://www.bluemaumau.org/15944/instant_tax_service_franchisor_convicted_conspiracy_fraud_other_related_crimes <!-- google_ad_section_start --><p><img alt="" src="http://www.bluemaumau.org/sites/default/files/resize/061917_2100_InstantTaxS1-670x174.jpg" style="height: 174px; width: 670px;" width="670" height="174" /></p> <p>Acting Deputy Assistant Attorney General Stuart M. Goldberg of the Department of Justice Tax Division announced June 5, 2017 that a federal jury convicted the owner of Instant Tax Service franchise in Dayton, Ohio of conspiracy to commit wire fraud, bank fraud, evasion of employment taxes and failure to pay employment taxes.</p> <!--break--><!--break--><p>Evidence presented at trial showed Fesum Ogbazion, 44, owner and CEO of ITS Financial LLC, founded the national tax preparation chain in 2004, which at one time operated more than 1,100 franchise locations throughout the United States.</p> <p>Sentencing will be set at a later date. Ogbazion faces a statutory maximum sentence of 20 years in prison on the conspiracy count, 20 years in prison for the wire fraud counts, 30 years in prison for bank fraud, five years in prison for tax evasion and five years in prison for failure to pay over employment taxes. He also faces a period of supervised release, restitution and monetary penalties.</p> <p>Evidence further reports that from approximately January 2009 through 2012, Ogbazion conspired with others at ITS to generate loan and tax return preparation fees for ITS and its franchises by luring taxpayers into ITS franchises through a fraudulent nationwide advertising campaign. The Justice Department report explains, &quot;The ITS ads offered tax refund anticipation loans through an independent third-party lender, despite the fact that ITS did not have such a lender to fund the promised loans. The evidence introduced at trial established that Ogbazion used the false advertising campaigns to entice customers into coming to ITS locations for a loan and then used their loan applications to prepare and file income tax returns &ndash; often without customers&#39; authorization. ITS charged its customers between $500 to $800 in tax preparation fees. Between 2006 and 2011, ITS collected more than $70 million in fees.&quot;</p> <p>Ogbazion also failed to pay approximately $1.3 million in payroll taxes due from ITS and another business during four tax quarters in 2009 and 2010. The franchisor then evaded the Internal Revenue Service&#39;s attempts to collect the unpaid taxes by directing business revenue to nominee accounts, placing assets in the names of nominee entities and making false statements to a IRS revenue office during the course of collection activity.</p> <p>The Department of Justice stated that in 2013, ITS Financial and Fesum Ogbazion were permanently barred&nbsp;from operating or being involved with any work or business relating to the preparation of tax returns. Instant Tax Service continues to operate its <a href="http://www.instanttaxservice.com.au/">website</a> and publicize its <a href="https://www.franchisegator.com/franchises/instant-tax-service/">services.</a></p> <hr /> <p><strong>Related Articles:</strong>&nbsp;</p> <ul> <li><a href="http://www.bluemaumau.org/13665/fraudster_instant_tax_service_turns_great_tax_llc" target="_blank">Fraudster Instant Tax Service Turns into Great Tax LLC</a></li> <li><a href="http://www.bluemaumau.org/12472/government_goes_after_instant_tax_service_franchisees_fraudulent_returns" target="_blank">Government Goes after Instant Tax Service Franchisees for Fraudulent Returns</a></li> <li><a href="https://www.forbes.com/sites/kellyphillipserb/2015/11/10/former-vp-of-instant-tax-service-pleads-guilty-to-tax-charges/#4cde930263e6" target="_blank">Former VP of Instant Tax Service Pleads Guilty to Tax Charges</a></li> <li><a href="https://www.reviewjournal.com/crime/courts/government-says-instant-tax-service-franchisees-filed-fraudulent-returns/" target="_blank">Government Says Instant Tax Service Franchisees Filed Fraudulent Returns</a></li> <li><a href="https://www.justice.gov/opa/pr/federal-court-bars-alleged-co-owner-las-vegas-instant-tax-service-franchise-preparing-tax" target="_blank">Federal Court Bars Alleged Co-Owner of Las Vegas Instant Tax Service Franchise from Preparing Taxes</a></li> </ul> <!-- google_ad_section_end --> http://www.bluemaumau.org/15944/instant_tax_service_franchisor_convicted_conspiracy_fraud_other_related_crimes#comments Legal judgment & dispute resolution bank fraud DOJ criminal indictment Fesum Ogbazion Instant Tax Service convicted tax fraud Mon, 19 Jun 2017 21:00:35 +0000 Janet Sparks 15944 at http://www.bluemaumau.org Noodles & Co Shakes Up Leadership Team, Tackles Declining Sales http://www.bluemaumau.org/15943/noodles_and_co_shakeup_leadership_team_tackle_declining_sales <!-- google_ad_section_start --><p>After reporting a net loss of $71.7 million in March and the closure of 55 underperforming company-owned stores the first two quarters this year, Colorado-based Noodles &amp; Company is continuing to shake up its leadership team. This week it announced that Paul J.B. Murphy III, president and CEO of Del Taco Restaurants Inc., will be taking over as executive chairman, effective July 10. He replaces Robert Hartnett who was stepping down, but pledging to stay on as a director.</p> <p><em>Denver Business Journal</em> had previously reported that Noodles &amp; Company (Nasdaq:NDLS) in April had also abruptly fired its chief operating officer, Victor Heutz, a seasoned restaurant veteran, after a short nine-month stint with the company. At the time, no explanation was given as to why the 11-year restaurant-industry veteran was terminated. Previously, Heutz had been with Buffalo Wild Wings, Starbucks Corp. and Cold Stone Creamery, and he was hired by Noodles &amp; Company only six days prior to CEO Kevin Reddy announcing his resignation effective immediately.</p> <p>In last week&#39;s announcement, Noodles &amp; Company reported that Dave Boennighausen was now the company&#39;s permanent CEO. He had been serving as interim chief executive after Reddy left the company last July. Boennighausen has also been the franchisor&#39;s chief financial officer since 2012. Now, the Journal is reporting that Sue Daggett has taken over as interim chief financial officer until a permanent CFO can be found. Daggett has served as Noodles&#39; vice president of finance since last August.</p> <p>The article quotes board member Andrew Taub saying &quot;Boennighausen&#39;s financial and business acumen and vision, as well as hi ability to bring people together, have been enormous assets during this period of transition, and we are confident that he is the right long-term leader for Noodles &amp; Company going forward.&quot;</p> <p>When announcing in February the closure of 55 company-owned stores, the <em>Denver Business Journal</em> stated that the company&#39;s financial performance had been adversely impacted by those restaurants. Many had been opened in the last two or three years in newer markets where brand awareness of the company&#39;s restaurants is not as strong as in other markets.</p> <p>The report said, &quot;Also today, Noodles announced preliminary, partial fourth-quarter results ahead of its official earnings report, projecting &#39;a system-wide decrease in comparable restaurant sales of 1.3 percent, including a 1.8 percent decline at company-owned restaurants and a 2 percent increase at franchised locations.&#39; It would be the sixth consecutive quarter of year-over-year declines of sales at locations open at least a year.&quot;</p> <p>Noodles had also reported a security breach that may have compromised payment information of some customers who use debit or credit cards at restaurants between January 31 and June 2, 2016.</p> <p>CEO Boennighausen said this week he plans to improve Noodles &amp; Company&#39;s performance across all areas of its business. &quot;We have a unique brand and an experienced and passionate team, and I believe we are taking the necessary steps in order to activate the brand and improve momentum,&quot; he said.</p> <p>According to Noodles website, the company started in 1995 offering made-to-order noodle dishes, and salads and soups. Today, the franchise company has more than 500 locations nationwide.</p> <p><strong>-- </strong></p> <p><strong>Related Articles: </strong></p> <ul> <li><a href="http://www.bizjournals.com/denver/news/2017/06/14/another-noodles-co-leadership-shakeup-company-taps.html" target="_blank">Leadership Shakeup at Noodles &amp; Company</a></li> <li><a href="http://www.bizjournals.com/denver/news/2017/04/19/noodles-company-fires-its-coo-after-nine-months.html" target="_blank">Noodles &amp; Company Fires Its COO after Nine Months</a></li> <li> <a href="http://www.bizjournals.com/denver/news/2017/02/09/noodles-company-to-close-55-restaurants.html" target="_blank">Noodles &amp; Company to Close 55 Restaurants</a> <p>&nbsp;</p> </li> </ul> <!-- google_ad_section_end --> http://www.bluemaumau.org/15943/noodles_and_co_shakeup_leadership_team_tackle_declining_sales#comments Leadership change Dave Boennighausen Del Taco Denver Business Journal Paul J.B. Murphy III Robert Hartnett Sue Daggett Sat, 17 Jun 2017 20:31:59 +0000 Janet Sparks 15943 at http://www.bluemaumau.org New York City Fast Food, Retail Employers Face New Hurdles with Latest Wage and Hour Bills http://www.bluemaumau.org/15941/new_york_city_fast_food_retail_employers_face_new_hurdles_latest_wage_and_hour_bills <!-- google_ad_section_start --><div class="photoright"><img alt="" src="https://c1.staticflickr.com/5/4258/35231138526_6ecf560922_c.jpg" style="width: 320px; height: 180px;" /> <div class="caption">Photo by P Steinberg</div> </div> <p>New York City Mayor Bill de Blasio has signed into law five bills imposing significant wage and hour restrictions on retail and food industry employers, which could change the way they schedule and communicate employee working hours. The laws will go into effect <strong>November 26, 2017.</strong></p> <!--break--><!--break--><p>DLA Piper issued its Fran<em>Cast</em> report today regarding the new obligations for both groups, retail and fast food. Authors of the legal bulletin are Joseph Alan Piesco, Norman M. Leon and Melissa R. Dean.</p> <p>Starting with <strong>retail</strong>, employers will be subject to a number of additional requirements under the new laws:</p> <ul> <li> <div><strong>No on-call shifts</strong>: Retail employers will be prohibited from scheduling &quot;on-call&quot; shifts,&nbsp;i.e., requiring a worker to remain available for a period of time without any guarantee of a compensable shift.</div> </li> <li> <div><strong>Advance notice of schedule changes</strong>: Retail employers must provide no less than 72 hours&#39; notice before adding, canceling or changing shifts, other than in delineated and exceptional circumstances (like a state of emergency or natural disaster), although employees may voluntarily trade shifts and voluntarily request time off without penalty.</div> </li> <li><strong>Advance notice of schedules</strong>: Written copies of work schedules must be provided to retail employees at least 72 hours before the start of the employee&#39;s first shift. If these are typically transmitted electronically, such also must be provided in electronic format.</li> </ul> <p>In addition, the new laws will create certain recordkeeping and posting obligations on retail employers. Specifically:</p> <ul> <li><strong>Posting of schedules</strong>: Retail employers will be required to &quot;conspicuously post&quot; all work schedules at a given location at least 72 hours prior to a shift, and must circulate this electronically if such means are normally used to communicate work schedules.</li> <li><strong>Recordkeeping</strong>: Retail employers will be obligated to provide, on request, an employee&#39;s schedule for any week worked&nbsp;in the preceding three years.</li> </ul> <p>The foregoing notwithstanding, retail employers may avoid these requirements if they are waived as part of a collective bargaining agreement, so long as the waiver is expressly stated.</p> <p>The FranCast bulletin states that &quot;retail employers&quot; are defined as any entities with 20 or more employees &ndash; inclusive of full-time, part-time and temporary employees &ndash; primarily engaged in the sale of consumer goods at one or more stores in New York City.</p> <p><strong>New obligations for fast food employers</strong>:&nbsp;Like retail employers, fast food employers face a host of new hurdles with which they must comply. For instance:</p> <ul> <li> <div><strong>Advance notice of work schedules</strong>: Fast food employers will be required to provide schedules for a 7-day workweek at least 14 days before the first scheduled shift. If not timely provided, employers will be subject to &quot;schedule change premiums,&quot; ranging from $10 to $75, although a penalty may be avoided in limited circumstances, such as where employees voluntarily trade shifts or in certain extreme situations (e.g., a state of emergency). Employees may decline extra shifts without repercussion.</div> </li> <li> <div><strong>Shifts to existing employees</strong>:&nbsp;When a shift becomes available, fast food employers must offer that shift to existing employees at that location before hiring a new employee, or moving an employee from another site (although an employer is not required to offer a shift to an employee if it would result in overtime pay). Employers must post a notice indicating that a shift is available and keep this offer open for at least three days. If another employee accepts the additional shift, they will be entitled to a shift change premium (as described in the preceding bullet), if applicable.</div> </li> <li> <div><strong>Limitations on shift scheduling</strong>: Fast food employers cannot require fast food employees to work two consecutive shifts where there are less than 11 hours between the end of the first shift and the beginning of the second. Employees may consent to doing so, but this must be in writing and the employee must be paid $100 for each such consecutive shift.</div> </li> <li> <div><strong>Notice to new hires</strong>:&nbsp;New fast food employees must be provided with written notice of their expected weekly hours and schedules prior to their first shift.</div> </li> <li><strong>Recordkeeping, notice and posting:</strong>&nbsp;Like retail employers, fast food employers will be required to keep schedules for&nbsp;three years&nbsp;and provide same to employees on request, and will have to publicly post current work schedules. In addition, the Office of Labor Standards will prepare a notice of rights that fast food employers will be required to post.</li> </ul> <p><strong>&quot;Fast food employers&quot;</strong> are defined as establishments (i) with the primary purpose of serving food or drink; (ii) where patrons order and pay before eating; (iii) that are part of a chain; and (iv) that are one of 30 or more establishments nationally (for franchisors and franchisees, both are aggregated nationally to meet this threshold).</p> <p>Finally, in addition to the premium payments described above, covered employers may face civil penalties payable to New York City for violations of these laws, which are to be assessed on a per employee, per instance basis.</p> <p>It should be noted that Governor Andrew M. Cuomo&#39;s Office has indicated that state regulations also may be forthcoming, and that these may, in whole or in part, preempt New York City&#39;s new laws.<strong> </strong></p> <p>That said, in light of these new laws and their breadth, DLA Piper attorney suggest that employers should be prepared to do the following:</p> <ul> <li> <div>Create or update guidance or training to educate managers and promote compliance with the new laws, and franchisors should consider educational opportunities for franchisees.</div> </li> <li> <div>Draft policies for making, issuing and providing employees with the requisite advance notice of their schedules.</div> </li> <li> <div>Establish measures to track required premium payments, and ensure service providers (such as payroll processors) have the ability to include premium payments in payroll.</div> </li> <li> <div>Implement appropriate record-retention policies consistent with these new laws.</div> </li> <li> <div>Identify procedures to account for schedule changes that occur after notice deadlines have passed (e.g., employees calling out sick and employee no-shows).</div> </li> <li>Prepare necessary consent notices to be issued to employees who voluntarily agree to shift changes or trade shifts with other employees.</li> </ul> <hr /> <p><a href="https://www.dlapiper.com/en/us/insights/publications/2017/06/new-york-city-passes-wage-and-hour-restrictions/">DLA Piper FranCast: New York City Passes New Wage and Hour Restrictions on Fast Food and Retail Industry Employers&mdash;Action Steps</a></p> <!-- google_ad_section_end --> http://www.bluemaumau.org/15941/new_york_city_fast_food_retail_employers_face_new_hurdles_latest_wage_and_hour_bills#comments Legal DLA Piper Mayor Bill de Blasio wage and hour laws Mon, 12 Jun 2017 21:11:00 +0000 Janet Sparks 15941 at http://www.bluemaumau.org Richard A. Solomon Passes Away http://www.bluemaumau.org/15930/richard_solomon_passes_away <!-- google_ad_section_start --><p>Franchisee attorney Richard A. Solomon passed away at home on May 19, 2017 from cardiac arrest. Born in Brooklyn, New York on December 14, 1937, Solomon was taken in by a Catholic orphanage and was later adopted by a Jewish family in Charleston, South Carolina.</p> <!--break--><!--break--><p>He attended The Citadel, a military college in Charleston, where he earned a bachelor&#39;s degree in European languages. He knew French, Spanish, Italian, Greek and German. Solomon graduated from the University of Michigan Law School in 1963 with a Juris Doctor degree in international antitrust law.&nbsp;</p> <p>At first he worked for General Mills&nbsp;Inc. as its antitrust lawyer for eight years as well as General Motors, then was the senior partner and founding principal of the law firm Solomon, Foley &amp; Moran for twelve.</p> <p>Solomon married and divorced franchise lawyer Sally Lee Foley, a past president of the National Association of Women Lawyers. He is survived by a daughter, who is a practicing physician, her husband and their two boys.</p> <p>Over the past 25 years, Richard&#39;s companion was Belinda Matte.</p> <p><img alt="" src="http://www.bluemaumau.org/sites/default/files/pictures/picture-282.gif" style="width: 85px; height: 85px; float: right; margin-left: 5px; margin-right: 5px;" width="85" height="85" />&quot;Every day was a new one with something new and exciting happening,&quot; said Matte. She added, &quot;I hated it when he treated me like a client when he was my lawyer on several matters. He was tough but usually right.&rdquo;</p> <p>Solomon was a certified airplane pilot and at one time an avid motorcyclist.</p> <p>He loved to read and cook. He was an avid writer, writing columns on <a href="http://bluemaumau.org/">Blue MauMau</a>, his own site <a href="http://franchiseremedy.com/">Franchise Remedies</a> and his more freewheeling and more personal observations on life at his site <a href="http://seamusmuldoon.com/">Seamus Muldoon</a>.</p> <p>Solomon&#39;s long legal career had been watched for years by thought leaders in the industry. &quot;One of the great pleasures of being a franchise lawyer is meeting great lawyers&nbsp;and great people all across the country,&quot; wrote Chicago franchisee attorney Carmen Caruso on learning of Solomon&#39;s death. &quot;Richard Solomon of Texas has been at the top of my list for many years.&quot;</p> <p>Solomon&#39;s message for franchise owners is best known for being one of tough love. &quot;Grow the hell up,&quot; he once wrote in his Blue MauMau column to franchisees whom he considered to be simply whining about their franchisor and not seeking reasonable solutions. The franchise litigator focused on what was in the four corners of the signed contract above all things. He blamed dissatisfied franchisees for their business losses and for&nbsp;signing a one-sided contract that favored the franchisor, saying it showed&nbsp;a lack of due diligence on the franchisee&#39;s part. &quot;Your problem is your fault. You made the bad investment,&quot; he wrote.</p> <p>His solution for franchisees was to hire a savvy expert, whether it was a franchisee litigator such as he, a due diligence expert or a lobbyist. Franchisees needed to cough up the money to accomplish what they wanted. &quot;You cannot just do this in-house and expect to have a good result,&quot; he argued to franchisee groups, who he saw were rarely reaching&nbsp;outside their circles to seasoned franchisee associations and experts to obtain top-notch help. Making use of his military training at The Citadel, he would argue to angry franchisees how counterproductive it was to only threaten the franchisor. He stressed fighting smart when necessary&mdash;but be sneaky so as&nbsp;not to alarm a franchisor that its franchisees were preparing the battleground.</p> <p>He would chide franchisees for the lack of laws that support them and contrast that with the legal and structural support franchisors&nbsp;had through the advocacy of&nbsp;the International Franchise Association. &quot;One would think that franchisees would organize and build their own political and legal war chest to go out and buy the kind of protection that franchisors get. They won&#39;t do that. They demand for free what the franchisor community has paid many millions to get.&quot;</p> <p>His one-of-a-kind&nbsp;candor was food for thought and a topic of conversation for many in the franchise industry. He will be missed.</p> <!-- google_ad_section_end --> http://www.bluemaumau.org/15930/richard_solomon_passes_away#comments People Tue, 06 Jun 2017 20:25:55 +0000 Don Sniegowski 15930 at http://www.bluemaumau.org Franchise Hiring Picks Up 18,400 Jobs in May 2017 http://www.bluemaumau.org/15929/franchise_hiring_picks_18400_jobs_may_2017 <!-- google_ad_section_start --><p>Franchised establishments increased their hiring by a moderate 18,400 jobs. That number is a couple thousand lower than the five year monthly average but it is a quantum leap from April&#39;s 5,400 increase in hiring, one of the lowest job hiring months in years. The biggest drop in hiring was in business services, while restaurants and auto dealers were highest, according to the monthly ADP National Franchise Report.</p> <p>That number comes amidst a robust increase of 253,000 private sector jobs from April to May, according to figures released Thursday by the ADP Research Institute.</p> <p>In contrast, the U.S. Bureau of Labor Statistics reported this morning a weak increase of 138,000 in May, but with an unemployment rate it adjusted slightly down to now 4.3 percent, which is a rate that hasn&#39;t been matched since 2001. The Bureau notes that the labor force participation rate declined by 0.2 percentage point to 62.7 percent in May but has shown no clear trend over the past 12 months.</p> <p>Small businesses increased their hiring by 83,000 jobs in May, according to a monthly survey by the payroll service firm ADP.</p> <p>&quot;May proved to be a very strong month for job growth,&quot; said Ahu Yildirmaz, vice president and co-head of the ADP Research Institute, about general private sector hiring. &quot;Professional and business services had the strongest monthly increase since 2014. This may be an indicator of broader strength in the workforce since these services are relied on by many industries.&quot;</p> <p>Mark Zandi, chief economist of Moody&#39;s Analytics said, &quot;Job growth is rip-roaring. The current pace of job growth is nearly three times the rate necessary to absorb growth in the labor force. Increasingly, businesses&#39; number one challenge will be a shortage of labor.&quot;</p> <p>&nbsp;</p> <p class="rtecenter"><img alt=" U.S. Added 18,400 Franchise Jobs in May, According to ADP National Franchise Report " src="http://www.adpemploymentreport.com/2017/May/NFR/images/infographic/main/NFRMay2017_infographic.gif" /></p> <!-- google_ad_section_end --> http://www.bluemaumau.org/15929/franchise_hiring_picks_18400_jobs_may_2017#comments The Economy Fri, 02 Jun 2017 14:37:31 +0000 Don Sniegowski 15929 at http://www.bluemaumau.org