What Happens when 800 Lawyers Meet Franchising's Bogeymen
David Weil heads the wage and hour division of the U.S. Department of Labor
Two of franchising’s biggest bogeymen, Dr. David Weil of the Department of Labor and Richard Griffin of the National Labor Relations Board, appeared before a group of franchise lawyers at their annual get-together last month—and it turned out they don’t have horns.
So jokes Lee Plave, partner at PlaveKoch law firm, referring to over-the-top characterizations of the two men, by the International Franchise Association’s former CEO Steve Caldeira among others, as being evilly intent on destroying franchising, if not motherhood and apple pie.
Plave was at the forum, and was kind enough to give Franchise Times his point of view on the proceedings.
Weil is head of the Labor Department’s wage and hour division and author of the book “The Fissured Workplace,” which argues that the rise of subcontracting, franchising and other arm’s-length arrangements in the workplace destroy protections for the American worker. Richard Griffin is the NLRB’s general counsel who said last August that McDonald’s should be held accountable along with its franchisees as a joint employer.
“Neither of them was breathing flames” at their presentation at the forum last month, Plave said. “They were both rational, reasonable people.”
At the forum, Plave said, Griffin emphasized in his remarks that the notion of joint employer is “highly factually driven,” so dependent on the specific case itself rather than generally applicable across a business model.
In the McDonald’s lawsuits, Griffin emphasized that in his view scheduling software is the problem, which he said is mandatory for McDonald’s franchisees to use, with a trigger that if labor reaches a certain percentage of sales, then the franchisee gets the directive to send people home.
Said Plave about Griffin: “He really took the wind out of the sails of the hair-on-fire, sky-is-falling crowd” in franchising.
According to Plave, Weil’s remarks were less specific, but Weil did say he got the idea for his “fissured” label from his wife, a geologist. Weil said “it’s absurd to suggest we’re trying to destroy franchising,” according to Plave.
The appearance by the two men was a coup for organizers of this year’s ABA Forum on Franchising, in New Orleans in mid-October. Jonathan Solish, a California attorney, and Eric Karp, a Boston attorney, interviewed them on stage.
Plave appreciated the opportunity to hear from the men themselves, rather than the rhetoric out in the field. “If you ever wanted to see the intellectual counterbalance to the stuff out there, this was it,” Plave said.
Tom Pitegoff of LeClairRyan also approved of the substantive dialogue, according to his blog post for Franchise Alchemy. The two men “faced a lion’s den of more than 800 lawyers representing franchisors and franchisees, none of whom want to see franchisors deemed to be joint employers of franchisee employees,” Pitegoff wrote. “Yet the presentation was substantive and enlightening. The labor officials came across as intelligent, thoughtful, articulate and intent on enforcing the law.”
Not all are fans of Griffin and Weil, of course. A quick cruise through media reports turns up many turns of phrase: Griffin’s work on McDonald’s is “a politically driven show trial.” David Weil is “a left wing academic” who “let the liberal dogs out” with his theory on the fissured workplace. And so on, but much worse.
Who would have thought a roomful of litigators would stage a much more thoughtful conversation?