Franchise FUD: Browning-Ferris Industries, the NLRB, and Joint-Employer Status

Franchise FUD: Browning-Ferris Industries, the NLRB, and Joint-Employer Status

iconicAn August decision by the NLRB is likely to have a broad impact in the coming years, forcing a great deal of change in how many businesses do business.  While the issue may be under the radar for some business owners, those in the franchise industry are paying very close attention – which makes sense because the ruling could easily be construed as the beginning of the end for the franchise business model.  At stake are the definition of “employer” and the determination of who is really responsible for the workers.

The issue stems from a 3-2 decision by the NLRB on a case involving Browning-Ferris Industries of California.  Browning-Ferris Industries is a waste management company that contracted with another company – Leadpoint – to supply employees to perform a variety of work functions.  Under the NLRB ruling, it was determined that Browning-Ferris was a joint employer with Leadpoint.  What is interesting in this case (and where the FUD – fear, uncertainty and doubt – come in) is that “indirect control” of the employees became the primary factor determining whether a joint employer relationship existed under the National Labor Relations Act. Going against years of precedent, the board ruled that Browning-Ferris and Leadpoint were jointly employing the workers.

In the decision, the Board applies long-established principles to find that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law;  and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board will – among other factors — consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.

https://www.nlrb.gov/news-outreach/news-story/board-issues-decision-browning-ferris-industries

There are many who believe Browning-Ferris is a precursor to the pending proceeding against McDonald’s Corp. in which the NLRB general counsel charges McDonald’s Corp as a joint employer of its franchisees’ employees.  Possibly in response to outcries of wage inequality and fast-food worker strikes to force an increase in the minimum wage, the NLRB seems to be adjusting its definitions in favor of the movement and may inadvertently destroy the foundations of the franchise business model according to some.

Clearly the franchise business model is in the crosshairs.  In an article published on Law360 by David J. Kaufmann, Breton H. Permesly and Dale A. Cohen, the authors cite from the June amicus brief on the Browning-Ferris proceeding, in which NLRB General Counsel Richard F. Griffin Jr “directly addressed and attacked franchising, claiming that it was merely an “outsourcing arrangement” and insisting that franchisors are the joint employers of their franchisees’ employees because franchisors can exert significant control over the day-to-day operations of their franchisees”. No ambiguity there.

There have always been questions when workers are classified as contractors, forcing regulatory agencies to delve into the details of the relationship to determine whether or not independence actually exists.  But this decision changes things in a big way.  From Unions gaining more strength in forcing contracting organizations to participate in bargaining processes, to franchise businesses electing to run only company-owned locations to minimize exposure and risk, there is likely to be some troubling times for businesses large and small in the coming months and years as the new definitions take hold.

jmbunnyfeetMake Sense?

J

here’s a shortlink to this article http://wp.me/p2hGOJ-Om

Finance and Accounting Support in Franchise Systems

Finance and Accounting Support in Franchise Systems

There has always been somewhat of a love/hate relationship between franchise operators and their franchisees. While many entrepreneurs elect to leverage a known brand, documented operating procedures, and combined purchasing power that is often a benefit of a franchise operation, the reluctance to open the books to the franchisor is sometimes based upon a fear that “big brother” will use the information to take advantage of the business owner. The two sides of the business model aren’t always operating in sync, even though a deeper level of finance and accounting process support might benefit both greatly.

Logic would suggest that both the franchisee and the franchisor would recognize the validity of sharing financial and business performance data for the benefit of the entire system, where benchmark data and performance comparisons can become the basis of tremendous business intelligence. But some franchisors, as their networks expand in size, find that their success in selling units begins to outweigh their concern for individual unit performance, and the brand value creates sufficient momentum to overcome a few bad business experiences. Especially in larger systems, the franchisors don’t often consider the benefits of providing back-office and accounting support for their franchisees, because they simply don’t feel they have to. That is changing to a degree, and reliance on quality accounting and financial data takes on entirely new meanings in an environment where franchising is increasingly more complicated and competitive.

High unemployment and low consumer confidence cause spending decreases which impact even the strongest of established businesses. With credit markets being as tight as they are and without qualify financial information to support the request, business owners are often unable to obtain the financing required to expand their businesses when required, to new locations or with additional personnel. The 2010 Franchise Business Outlook[1] suggested that, even as the economy starts to recover, franchised small businesses will continue to face these financing struggles. The forecast is for “a slow recovery with marginal increases in the number of establishments, jobs and output.”

Looking to Washington for help, a number of small business organizations, along with The International Franchise Association, are “calling upon Senators to include more provisions in new job creation legislation to help small businesses access credit.” [2] The fear is that if credit access for small business isn’t made available now, the best opportunity to create sustainable business and subsequent job growth will be lost. Reliance by small businesses upon credit is unquestionable.

According to the IFA, “the depletion of [SBA loan] funds last fall is proof that the SBA programs were, and continue to be, critically important for our nation’s creditworthy entrepreneurs”. However, without sound business accounting and provable data, even the most business savvy entrepreneur may find their business “unbankable” and must therefore rely upon personal credit guarantees to support business growth.

Possibly the strongest point in the argument for franchisors facilitating accounting and financial management assistance to the franchisee centers on Item 19 of the FTC and state Franchise Disclosure Documents (FDD)/Uniform Franchise Offering Circular (UFOC). Item 19 is the Earnings Claim, which are estimates or historical figures detailing sales, expenses, and income a prospective franchisee might realize as the owner of a particular franchise.

The Earnings Claim is often considered to be the single most important factor in buying a franchise. As with purchasing any business, it is critical to have a realistic and supportable projection of sales, expenses, and profits earned. Particularly in a case where a potential new franchisee has no experience running a business, or no applied experience in that particular type of business, the earnings claim becomes the only guidance available. Unfortunately, the only source for this information is the franchisor itself, which often introduces doubt as to the veracity of the data. It is difficult to determine which could raise more doubt about the sincerity of the franchisor: using unverifiable data, or not providing an earnings claim at all.

When a franchisor elects to provide services to their franchisees, such as back-office accounting support or financial management oversight, then the opportunity to obtain data for the earnings claim, performance benchmarking, and royalties verification become realistic goals. Further, the ability to verify and substantiate the data can prove invaluable in a tough franchise market where buyers want good, verifiable information, and Item 19 helps sell units.

Offering accounting support to small business owners isn’t a new concept, but the technology to facilitate a truly seamless relationship has only become available in recent years. As Internet and Web-based application services emerged on the market, businesses flocked to them in order to gain the benefits of anytime, anywhere access to applications and data. However, the poor performance and lack of features left some business users without the tools they needed to handle all their requirements efficiently, so many returned to manual or local PC-based systems.

Secure remote access and application hosting services are a technology approach which adapts trusted and proven software and systems to a cloud-based, collaborative online working model. The server-based application model, which is essentially a hosting approach delivered from on-premises computers or offsite hosting infrastructure) allows the businesses to continue use of applications with the functionality required to support the business, but improves the IT environment by managing and securing the applications and data within the confines of the host. This eliminates the need to install or maintain applications on different computers and eliminates the need to have data copied or sync’d to different computers and devices.

A valuable aspect of providing secure remote access and centralized access to applications and data is the ability to then integrate with reporting systems designed to assist in the translation, analysis, and comparison of data from a single business to an entire franchise system.

Deploying server-based (hosted) computing models with remote and mobile capability means owners are able to retain their investments in software applications and processes while introducing new efficiencies and flexibility in their working models. The evident benefits are the ability to access information from any location, to have multiple locations work seamlessly together, and to allow outside accountants or other service providers to work seamlessly in the organization. Adding commercial hosting of the server expands on centralized management and administration with professionally-secured systems, greater predictability in ongoing IT costs and an improved ability for the business owner to focus on the business.

In summary, the franchisor market must look more closely at the fiscal management and reporting systems of their franchisees, and provide avenues to better-address access and support for accounting and bookkeeping responsibilities in order to gain credible performance data and useful benchmark metrics. Only through the ongoing participation of accredited accounting and financial personnel can the business financial data provide the information – and the insight – required to support aggressive business growth in this difficult economy.

The key is seamless integration, and the technology solution is the cloud-enabled model.

Make Sense?

J

[1] Report that measures the economic impact of franchising in the United States, prepared by PricewaterhouseCoopers (PwC), and commissioned by the International Franchise Association Educational Foundation. http://franchise.org/uploadedFiles/Franchise_Industry/Resources/Education_Foundation/2010%20Franchise%20Business%20Outlook%20Report_Final%202009.12.21.pdf

[2] Franchise.org Press Release http://www.franchise.org/Franchise-News-Detail.aspx?id=49246