• NLRB and the Joint Employer: Is Franchising On the Ropes?

    May 02, 2016 |

    Recent NLRB decisions have rewritten the labor law map in a variety of ways, but nowhere more significantly than in the areas of franchising and outsourcing. With the decision in Browning-Ferris and decision by the NLRB's general counsel involving McDonald's, the definition of a "joint employer" has grown exponentially broader.

  • Court Watch

    May 02, 2016 |

    Third Circuit Affirms Denial of Injunctive Relief to Franchisor, Concluding Concessions of Counsel Disproved Irreparable Harm
    Fifth Circuit Issues Cautionary Note to Franchisees That Plead Their Claims Haphazardly

  • Covenants Not To Compete

    May 02, 2016 |

    Covenants not to compete are not the favorites of courts. Enforcement of such restrictions reduces competition; accordingly, the analysis requires the weighing of various factors and the cases are decided on in a fact-sensitive manner. In Aamco Transmissions v. Romano, the district court elegantly reviewed the specific facts of the case, modified the contractual covenant not to compete, and concluded that the former franchisee did not violate the modified covenant.

  • Non-Reliance Disclaimers and Anti-Waiver Provisions

    April 02, 2016 |

    A number of conflicting decisions over the past year and a half concerning whether provisions prohibiting waiver of duties or liabilities under the New York Franchise Act prohibit franchisors from interposing franchisee "non-reliance" franchise agreement disclaimers when confronting fraud actions brought under the Act makes clear that this critical area of law will remain muddied until the courts decisively rule on the subject.

  • Online Extra: Chipotle in Trouble Again, This Time With the NLRB

    March 31, 2016 |

    It hasn't been an easy couple of months for Denver-based fast casual food giant Chipotle Mexican Grill Inc. And now a decision from the National Labor Relations Board has shone a negative light on the company's social media policies and labor practices too.

  • $596 Million Stock Offering For Burger King Parent

    February 29, 2016 |

    Greenberg Traurig corporate and securities shareholders Kara MacCullough and Flora Perez barely slept for eight days. That's the time they had to complete a secondary public offering for their client Restaurant Brands International, or RBI, parent of Miami-based Burger King and Oakville, Ontario-based coffee, doughnuts and sandwich chain Tim Hortons.

  • Court Watch Franchisors Rebuff Franchisees' Claims Of Bad Behavior

    February 29, 2016 |

    The implied covenant of good faith and fair dealing, while not always a separate cause of action, depending on the jurisdiction, can be a powerful tool in a franchisee's arsenal to assert claims based on breaches of franchise agreements due to a franchisor's bad conduct. However, recent cases coming out of New York and Michigan demonstrate just how difficult it can be for a franchisee to make out a claim premised on the franchisor's poor behavior.

  • Can an Applicant With a Criminal History Buy a Franchise?

    February 29, 2016 |

    The character of a franchise prospect seems relevant. Franchisors want trustworthy participants in the franchise system. A credit report and a criminal history search seem reasonable to screen out undesirables. Roughly one in four adults has some criminal history that would show up on a search, and some of these crimes have since been decriminalized. Using searches of criminal histories and credit reports can also be racially discriminatory.

  • The Disparate Impact of Hiring Practices

    February 29, 2016 |

    In a first-of-its-kind decision, the U.S. Court of Appeals for the Eleventh Circuit deferred to the EEOC and held that job applicants may bring "disparate impact" claims for age discrimination against potential employers, even in the absence of evidence of intentional discrimination.

  • Court Watch

    January 31, 2016 |

    Court Dismisses Franchise Act Claims
    Court Grants Franchisor's Motion to Compel Arbitration

  • The NLRB's 'Joint Employer' Thrust Defies 50 Years of Judicial Precedent

    January 31, 2016 |

    In this article, I analyze how the NLRB general counsel's approach is refuted by 50 years of virtually unanimous judicial decisions, and address a recent NLRB decision greatly expanding who may be deemed a "joint employer" (and how this decision discarded 30 years of NLRB precedent). I also discuss the harsh consequences that may pertain should the NLRB general counsel succeed in his efforts to have franchisors declared the "joint employers" of their franchisees' employees.