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Though Wieczorek agreed that the litigious environment would make many restaurant brands wary of trying to share best practices with franchisees, he conceded that those operators would need lots of help complying with employment laws that look quite different depending on where their restaurants are located.

In that case, he said, franchisees need to work closely with attorneys in their local markets.

“A national franchisor is in no position to tell a franchisee how they comply with local laws,” Wieczorek said. “There are not only state, but also city and county laws that go down to the micro level on these things. If you want to give recommendations, you can’t make anything mandatory, and you should tell your operators to check with their local lawyers.”

Don’t over-share in manuals or documents

Many franchisors account for the changes in law from one local jurisdiction to another by including copious disclaimers like, “State laws differ; consult your attorney,” if they print template manuals for brand standards that franchisees could then adapt to their local markets.

“I tell my clients to shy away from template manuals,” Spandorf said. “A lot of things in the manual are required, but something you might want to show as a best practice gets included in a manual of requirements, then workers can use the manual as evidence that the franchisor is dictating the franchisee’s employment practices. The whole area of even just trying to be helpful is high-risk, especially with the proliferation of cases involving inadvertent-employer status.”

Brands need to be more careful when sharing a best practice, she said, because courts read through franchise contracts to determine if the controls put in place by the franchisor are just enough to satisfy the requirements of federal trademark and franchise law, or if the controls go into more detail to cover more facets of the franchisee’s business.

That is why she was “surprised” to read employees’ claims in the suits against McDonald’s, alleging that the franchisor encouraged franchisees to control their labor costs by having crew members work off the clock when their units’ labor-scheduling software sent alerts, “because McDonald’s goes to the same meetings I do and reads the same cases I do,” Spandorf said.

McDonald’s operates or franchises approximately 35,000 restaurants in more than 100 countries, including more than 14,000 locations in the United States.

Contact Mark Brandau at mark.brandau@penton.com.
Follow him on Twitter: @Mark_from_NRN