In last Thursday’s Vazquez v. Jan-Pro Franchising, the Ninth Circuit made several impactful findings related to the infamous Dynamex decision:

  1. Aligning with several state court decisions supporting retroactivity, the Ninth Circuit ruled that Dynamex’s ABC test applies retroactively.
  2. It also applied Dynamex to a multi-level franchise structure, expanding the test beyond the independent contractor context.
  3. Last, the Court issued guidance to the district court on remand reaffirming the difficulty of “passing” the ABC test.


Continue Reading In Expansive Decision, Ninth Circuit Rules Dynamex Applies Retroactively

On August 1, 2016, the U.S. Department of Labor and Doctors Associates Inc. (Subway Restaurants) announced a voluntary agreement formalizing their ongoing collaboration.  This agreement is a first of its kind and seeks to ensure that franchise owners have the tools necessary to comply with wage and hour laws.  Since 2012, Subway has made available a platform for the DOL to provide training and resources to franchisees.  Despite the DOL’s efforts, other companies have reportedly been reluctant to enter into similar agreements due to fears that other government agencies will use such an agreement as evidence of a joint employer relationship.  Interestingly, Subway has been collaborating with the DOL for over three years and although this collaboration has been very much in the public eye, no agency has indicated that such a relationship would make them a joint employer.  The DOL hopes the fact that Subway, the world’s largest franchisor, entered into the compliance agreement will encourage other companies to follow suit.  Given the various government agencies’ joint employer efforts, all companies, whether franchisors or not, should analyze their own specific circumstances before entering into a similar agreement.
Continue Reading Does Subway’s Compliance Agreement with the DOL Really Raise Joint Employer Concerns?