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Joint Employer Liability and the Implications for Franchisors and Licensors

(69 Ratings)

Produced on: November 15, 2016

Course Format On Demand Audio

Taught by


Course Description

Time 60 minutes
Difficulty Intermediate

Franchisors and licensors are confronting a concerted effort by the U.S. Department of Labor, the National Labor Relations Board and some state attorneys general to thrust direct liability upon them — as putative "joint employers" — for their franchisees' and licensees' wage-and-hour and labor law violations.

With the strong support of unions seeking the ability to collectively bargain the wages of franchisee and licensee employees with the subject franchisors and licensors (instead of with the direct franchisee and licensee employers), and the strong endorsement of academics who view franchising and licensing merely as a means of "fissuring" the economy to the detriment of workers, these federal and state agencies have initiated investigations, administrative proceedings and court actions seeking to establish as law their rather radical normative desires (most notably, a pending NLRB case against McDonald's Corporation seeking to hold it liable for its franchisees' wage-and-hour, overtime and other purportedly violative conduct).

This program will examine how the politics of economic disparity triggered the aggressive government "joint employer" thrust; examines the forces and philosophies that gave rise to the "franchisor/licensor as joint employer" theory; examines how the government is deploying that theory against franchisors and licensors; and will examine how the Lanham Trademark Act and all federal and state franchise laws (along with virtually every judicial decision addressing the subject) actually refute the position that a franchisor or licensor is the joint employer of its franchisees/licensees' employees.

Join David J. Kaufmann for a discussion of these issues. Mr. Kaufmann, a partner in New York City-based Kaufmann Gildin & Robbins LLP and Chair of that firm's Franchise and Distribution Group, represents many of our nation's largest and most reputable franchisors; authored the New York Franchise Act; serves as the New York Law Journal's franchise law columnist; is an advisor to the quasi-governmental body of our nation's federal and state franchise regulators (the NASAA Franchise Project Group); and authors the annual Practice Commentary on franchising for McKinney's New York Statutes. 

Learning Objectives: 
  1. Analyze the genesis, evolution and current status of the "joint employer" doctrine
  2. Address how the joint employer theory is being applied against franchisors
  3. Identify those steps which franchisors and licensors must undertake to shield themselves from a governmental/judicial determination that they are joint employers


David Kaufmann

Kaufmann Gildin & Robbins LLP

David J. Kaufmann is a founding member and senior partner of New York City's Kaufmann Gildin & Robbins LLP.

David - - partner-in-charge of Kaufmann Gildin's franchise team - - is nationally acclaimed as one of America's foremost franchise lawyers. The United States District Court for the Southern District Court of New York long ago held that "David Kaufmann is unquestionably an expert in franchise law." The New York Times lauds David as "a lawyer in New York who has represented many of the nation's top franchisers". David has been featured in The Best Lawyers in America under the heading "Franchising-New York City" in every edition of that publication. He was named the inaugural "New York Area Franchise Lawyer of the Year" by New York magazine. And Franchise Times inducted David into its "Legal Eagle Hall of Fame" (as an attorney who was dubbed a "Legal Eagle" by that publication each and every year since inception).

David's franchise clients include many of our nation's and the world's largest and most prestigious franchisers including: YUM! Brands, Inc. (Pizza Hut/KFC/Taco Bell); Marriott International, Inc.; Wendy's International, Inc.; Arby's Restaurant Group, Inc.; 7-Eleven, Inc.; InterContinental Hotels Group plc (Holiday Inns/Crowne Plaza/InterContinental Hotels/Hotel Indigo); Enterprise Holdings, Inc. (Enterprise, National and Alamo vehicle rental networks); Wyndham Worldwide Corporation (Wyndham Hotels & Resorts/Ramada Inns/Days Inns/Howard Johnson/Super 8/Travelodge); Weichert Realtors; Jani-King, Inc.; Wok & Roll; Ripley's Attractions, Inc.; Johnny Rockets Group, Inc.; The Museum of Modern Art; and, Luke's Lobster.

As well, David has been asked by many of our nation's leading investment banks, private equity concerns and law firms to assist in their franchise-related acquisitions, securitizations and financings. These include: Goldman Sachs; The Blackstone Group; Trian Partners, L.P.; Castle Harlan; Wellspring Management LLC; Cerberus Capital Management L.P.; Levine Leichtman Capital Partners; Haas Wheat; Friedman Fleischer & Lowe; Paul Weiss Rifkind Wharton & Garrison LLP; Skadden, Arps, Slate, Meagher & Flom; Schulte Roth & Zabel LLP; Debevoise & Plimpton LLP; Milbank, Tweed, Hadley & McCoy LLP; Vinson & Elkins LLP; Simpson Thatcher; and, Fried, Frank, Harris, Shriver & Jacobson.

David authored the New York Franchise Act (New York's franchise statute) while serving as Special Deputy Attorney General; serves as an advisor to the organization of federal and state officials responsible for devising and coordinating franchise regulatory activity nationwide - - the NASAA (North American Securities Administrators Association) Franchise Project Group; served as a member of the Governing Committee of the American Bar Association Franchise Forum; served as Chair of the New York State Bar Association Franchise Law Committee; is the New York Law Journal's Franchise Columnist; authors the Franchise Practice Commentary appearing in McKinney's New York Statutes, which is routinely relied upon by federal and state courts determining franchise disputes involving the New York Franchise Act; and, authored the International Franchise Association's treatise on franchise law, entitled An Introduction to the Law of Franchising.

David holds (and has held since 1988) the highest possible ranking accorded by our nation's leading attorney rating firm, Martindale-Hubbell: "AV Preeminent" ("Highest Possible Peer Review Rating in Legal Ability and Ethical Standards").

David is admitted to practice before the federal and state trial at appellate courts of New York and the United States Supreme Court, and has been admitted pro hac vice in various federal and state courts around the country.


Victoria K.

The best program on this topic and among all programs I have viewed to date. I feel like I was in the room listening live to a seminar. Great organization of the points made and comprehensive coverage.

Alfred S.

Great information from an expert on franchise law.

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