From Lexology, Barry M. Heller discusses the challenges to franchising presented by the ABC test. Barry writes:
Over the last few years, there have been developments, both legislative and judicial, regarding the classification of “employees” and “independent contractors.” These developments pose a serious threat to the franchise model.
The franchise relationship is built on the premise that the franchisor has developed a system which it licenses to independent contractors who own and operate their individual businesses in accordance with the requirements of that system. The view that the franchisor is somehow an employer of the franchisee, or even a joint employer of those who work for the franchisee, is inconsistent with the fundamental concept of franchising. Recent developments in the law of employee/independent contractor classification raise concerns for the future of franchising.
In 2018, the Supreme Court of California, in a case called Dynamex Operations West v. Superior Court, 4 Cal. 5th 903 (2018), addressed the standard to be applied in determining who can be classified as an “employee” versus an “independent contractor.” Rather than following prior longstanding precedent, the Supreme Court adopted what is called the “ABC” test – a test applied in a few other jurisdictions.
The ABC test, at the urging and intensive lobbying of union representatives, was essentially codified by the California legislature in what is called Assembly Bill 5 (AB5), which became effective in that state on January 1, 2020. Despite lobbying by franchisors, the California legislature did not incorporate an express exemption for franchising in the legislation.
Legal challenges to the applicability of AB5 to franchising continue. In November 2020, our firm filed an action in federal court in San Diego on behalf of the International Franchise Association, joined by a group of franchisee associations, seeking a determination that AB5 cannot apply to franchising because it is pre-empted by the Federal Trade Commission (FTC) Franchise Rule and the federal Lanham Act. (International Franchise Association, et al. v. State of California, et al., Case No. 20CV2243 (S.D. Cal., filed November 17, 2020).) That case is pending and no decision has yet been issued.
One of the theories on which that complaint is based has already been recognized by at least one court. In Dhananjay Patel v. 7-Eleven, Inc., 2020 WL 5440623 (D. Mass. 2020), the United States District Court for the District of Massachusetts held, in the context of the ABC test which is in effect in that state, that there is an “inherent conflict” between the definition of the franchise relationship under the FTC Franchise Rule and the ABC test. (Our firm represented 7-Eleven in the case.)The court granted summary judgment to 7-Eleven, concluding that the franchise-specific regulatory regime of the FTC Rule governs over the Massachusetts ABC test.
This area of the law continues to evolve, and it remains to be seen whether in 2021 the courts and legislatures will protect the basic premise on which the franchise relationship rests – namely, that franchisees are independent contractors and not employees.
Read the full story at Employee and independent contractor classification: Still the top legal issue in franchising – Lexology