1. National Foods, Inc. sells franchises to its fast-food restaurants, known as Chicky-D's. Under the franchise agreement, franchisees agree to hire and train employees strictly according to Chicky-D's standards, and Chicky-D's regional supervisors are required to approve all job candidates before they are hired and all general policies affecting those employees. Chicky-D's reserves the right to terminate a franchise for violating the frachisor's rules. In practice, however, Chicky-D's regional supervisors routinely approve new employees and individual franchisees' policies. After several incidents of racial comments and conduct by Tim, a recently hired assistant manager at a Chicky-D's location, Kerry, a counterperson at the restaurant, resigns. Kerry files suit in a federal district court against National Foods, Inc. National Foods, Inc. files a motion for summary judgment, arguing that it is not liable for harassment by franchise employees. Should the court grant National Foods' motion? Explain fully.
A recent decision, Myers v. Garfield & Johnson Enterprises, Inc., 2010 U.S. Dist. LEXIS 3468 (E.D. Pa. Jan. 14, 2010), once again raises the potential liability of a franchisor for claims based on discriminatory conduct alleged against a franchisee.
At issue in Myers is whether a franchisor can be liable under federal law for sexual harassment of a franchisee’s employee allegedly perpetrated by the franchisee’s managers. The employee alleged that the franchisor provided her job training, issued a written code of conduct that prohibited harassment and discrimination in the workplace, and oversaw and approved all tax returns she prepared. The issue arose when the employee complained to one of the franchise owners that her supervisor had made repeated unwelcome sexual remarks to her. Her complaint, she claims, was met with additional harassment from the owner. The supervisor then allegedly followed up with even more harassment, including a performance evaluation suggesting that plaintiff “should experience what Nicole Brown Simpson did” and distributing that evaluation to other managers and supervisors. Allegedly, when the plaintiff complained about the evaluation, another owner responded that he had written up the supervisor, and then solicited plaintiff for oral sex. There was no allegation that the plaintiff ever reported the alleged harassment to anyone at the franchisor.
The franchisor immediately moved to dismiss the claims against it, arguing that it did not employ the plaintiff, as specified in the franchise agreement, and therefore could not be liable as an “employer.” The plaintiff responded by arguing that the franchisor was potentially liable under three distinct theories: (1) directly as a “joint employer” with its franchisee; (2) vicariously as its franchisee’s actual principal under an agency relationship; and (3) vicariously as the plaintiff’s “ostensible or apparent employer.” Under the “joint employer” test, two otherwise independent entities are both considered an individual’s “employer” where both “exercise significant control” over an individual. Significant control, the court held, is measured by three factors: (1) authority to hire and fire, promulgate work rules and assignments, and set conditions of employment; (2) day-to-day supervision of employees; and (3) control over employee records. No one factor, however, is determinative. Based on the plaintiff’s allegations that the franchisor promulgated work rules by issuing a sexual harassment policy, engaged in day-to-day supervision by reviewing and approving each tax return she prepared, and assumed some control over employee records by providing a computer-based employee records system, the court held that she alleged sufficient facts to establish a potential joint employer relationship.
Relying on decisions from other jurisdictions, the court also rejected the argument that franchise relationships could not give rise to vicarious liability for discrimination claims. “Although the mere existence of a franchise relationship does not necessarily trigger a master-servant relationship, neither does it automatically insulate the parties from such a relationship.” By her allegations that the franchisor required the franchisee’s employees to undergo training by the franchisor, and required the franchisee to implement certain personnel policies and implement a code of conduct applicable to franchisees’ employees, the plaintiff had pled sufficient facts to support a claim that the franchisor had sufficient control over the very thing that allegedly resulted in the plaintiff’s injuries.
Finally, the court allowed the plaintiff to proceed with her apparent or ostensible agency theory. Recognizing that apparent authority must be based on statements of the principal, not the alleged agent, the court focused on the plaintiff’s allegations concerning communications she received directly from the franchisor, including the training and codes of conduct. Because these materials did not clearly distinguish between the franchisor and franchisee, the court held them sufficient, for Rule 12 purposes, to state a claim for apparent agency. http://www.nixonpeabody.com/publications_detail3.asp?ID=3134
The court should not grant the motion.
Attorney with over 35 years of business experience.
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