Special Session

ALEC-inspired proposal lets franchisors escape responsibility, puts onus on small businesses for violations

In another twist in the ongoing saga of the special legislative session, the first section of the General Assembly’s so-called Regulatory Reform Act (HB3) deals a blow to restaurant and other franchise owners who take actions at the direction of the franchisor (the corporate entity that grants an individual or corporation the right to run a location of its business). Following in the footsteps of states like Texas, Tennessee, and Louisiana, the proposal seeks to put liability for wage and hour, workplace injuries, and unemployment benefits squarely on the backs of franchisees, even when the illegal acts may have been committed in conformity with the policies and procedures of the franchisor. In other words, if the bill passes, a local Waffle House franchise owner, for example, could be sued for following the orders of Waffle House’s corporate headquarters, while the headquarters remains shielded from challenges in court.

The American Legislative Exchange Council (ALEC), at the apparent behest of the International Franchise Association, has been promoting similar legislation in states across the country. The impetus for these bills appears to be the 2015 decision by the National Labor Relations Board, Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Recyclery, 362 NLRB No. 186 (Aug. 27, 2015), in which the Board interpreted of the definition of employer to cover the franchisor. Scrambling to avoid liability, franchisors are supporting bills that dramatically scale back their liability for a host of workplace violations for which they are responsible– simply by changing the definition of employer to exclude franchisors. Under HB3, franchisors would no longer be jointly responsible if the workers at a particular outlet were denied overtime, injured, or wrongly fired. All liability would rest on the local business owner, who might have been acting at the behest of the franchisor and will have to absorb a judgment that they may very well not be able to handle.

But why, lawmakers might argue, should a franchisor be considered an employer if all of the control over the employees rests with the franchisee? Of course, they shouldn’t – and they wouldn’t, under existing North Carolina law. The only purpose served by the franchise provision of HB3 is to let franchisors off the hook when they do exercise control over the employment relationship. And that is the height of unfairness both to the injured, underpaid, or unemployed worker, and also to the franchisee, who may be a small business owner who is simply doing what they are told.

Uncategorized

NC Department of Commerce found to violate Civil Rights Act

unemployment 

A multi-year investigation launched after a complaint was filed by Legal Aid of North Carolina, the North Carolina Justice Center, and Legal Services of the Southern Piedmont found the North Carolina Department of Commerce failed to comply with its obligations to provide services to persons with limited English proficiency (LEP). And yesterday, the state entered an agreement with the US Department of Labor to finally begin addressing this long-standing problem.

The original complaint alleged that the Department’s Division of Employment Security (DES) and Division of Workforce Solutions (DWS) violated Title VI of the Civil Rights Act of 1964 by not offering language assistance to persons filing claims for unemployment insurance or seeking job placement or training.  In addition, the complaint asserted that the Department of Commerce did not provide written translations of vital documents and failed to make telephone and online services accessible to LEP persons.

For the 430,000 North Carolinians with limited English proficiency at the time the complaint was filed in 2013, the Department’s failure to provide adequate language access caused significant difficulties for them accessing services and benefits.  The complaint included affidavits from affected individuals who had to wait hours in order to receive language assistance.  Some were unable to report their work search because the telephone and online services to do so are only in English.  None was offered any job search or job training services. 

The complaint was filed after years of attempts by the complainant organizations to reach an informal resolution with the Department, and was updated in 2015 with examples of continuing problems.  The ongoing problems included: failure to identify appellants as LEP individuals needing interpretation for hearings, resulting in the need to reschedule the hearing; and sending notices of hearings and hearing decisions in English only.  There were also continuing problems with weekly job search reports since the only avenues for making such reports were in English.

Under the settlement agreement reached between the U.S. Department of Labor’s Civil Rights Center and the Department of Commerce, DES and DWS must

·         Assess the language needs of the LEP populations they serve and track and report encounters with LEP individuals;

·         Develop and implement meaningful language access plans;

·         Correct problems with translations of written materials and online services

·         Identify and correct deficiencies with the provision of interpreter services

·         Train all staff on their obligations to provide language access to LEP individuals

·         Publicize the availability of language assistance and review claims by LEP individuals whose services were denied or delayed

Whether the agreement results in meaningful access for LEP individuals to all of the services to which they are entitled will depend upon the commitment of the Department of Commerce to timely and effective implementation.

Commentary

North Carolina takes step forward in addressing worker misclassification

Workers in North Carolina received some welcome news last week – the signing of a Memorandum of Understanding between the NC Industrial Commission and the U.S. Department of Labor that should make it easier for both agencies to investigate cases of employee misclassification. The term misclassification refers to workers whose employers have incorrectly treated them as independent contractors rather than employees.

Misclassified workers miss out on many of the benefits of employees, including worker’s compensation, unemployment insurance, and overtime pay. But the damage goes beyond the harm to individual workers—the state loses tax dollars because employers are not paying their share of payroll taxes, a problem that is well documented.

Surprisingly, employee misclassification is not illegal in North Carolina. While there have been efforts to address this, the General Assembly has not passed legislation that would impose penalties on employers who misclassify workers.

The good news, however, is that workers who are incorrectly treated as independent contractors now have the option to make a complaint with the Employee Classification Section of the NC Industrial Commission. The Section coordinates with other state agencies so they may undertake their own investigations into whether the employer owes unemployment taxes, should be paying overtime to its workers, has not been properly paying payroll taxes, or needs to purchase workers’ compensation insurance.

The new MOU with the U.S. Department of Labor will also ensure that evidence of misclassification is shared between the state and federal governments. It’s a good step toward the broader reform that is needed to protect workers and provide revenue to the state.

Commentary

Provision added to regulatory reform bill would undermine farmworker unions

Farmworkers

As has been common with bills drafted by this General Assembly, the title of HB593 does not adequately describe its contents.  The “Act to Amend Certain Environmental, Natural Resources, and 3 Other Laws” deals with wide ranging subjects, including storm water, erosion, reptiles, and mopeds.  A late addition, Section 17, adds unions to the mix.

Section 17 seeks to modify North Carolina’s Right to Work law, more accurately described as “the right to work for less.”  This law allows workers who don’t pay union dues to benefit from a contract negotiated with the employer.  The General Assembly amended the right to work law during the 2013-14 legislative session, voiding agreements that condition the purchase of agricultural products on the union status of that producer.  That amendment aimed squarely at interfering with the Farm Labor Organizing Committee (FLOC)’s highly successful model of organizing tripartite agreements between farmworkers, growers, and the companies that purchase agricultural products.

The Indy wrote yesterday about the GA’s past meddling with FLOC:

In 2013, the legislature passed the sweeping Regulatory Reform Act, called House Bill 74, which stripped farmworkers of the ability to llectively bargain and barred corporations from putting pressure on the farms they get their products from to ensure fair labor standards. If HB 74 had passed a decade earlier, says Justin Flores of the Farm Labor Organizing Committee, the FLOC wouldn’t have been able to reach a collective bargaining agreement with the NCGA.

“What this General Assembly did, including Senator Jackson,” says N.C. AFL-CIO secretary-treasurer MaryBe McMillan, “was make farmworkers even more vulnerable by limiting their ability to come together and create these supply-chain agreements so they could get corporations to put power on growers to make sure farmworkers are paid decent wages and treated fairly.”

Now the General Assembly wants to step into private agreements between growers and farmworkers in settlement of litigation.  Section 17 would prevent agreements whereby a grower recognizes an employee union as part of a negotiation between the parties to a lawsuit.  It is unclear why growers would want their hands tied in such a way that they could not bargain freely to resolve litigation in a way that they consider to be beneficial to their interests.

Commentary

International visitors work in North Carolina, nationally through J-1 program

If you have traveled to the Outer Banks recently, chances are you have been waited on by an international student. Stores, restaurants, and hotels on the North Carolina coast are increasingly turning to temporary foreign workers to fill customer service and cleaning positions in the summers.

These workers come to North Carolina on what is known as a J-1 visa. The J-1 program was developed to provide a cultural exchange experience for international visitors. Described by the State Department as a “work and student-based exchange visitor program,” the J-1 program attracted 6,927 people to North Carolina in 2014 for a variety of different programs, among them camp counselor, au pair, intern, trainee, and summer work travel. A few of the programs are designed as specific learning opportunities for international visitors, scholars, and students, but others place people into short-term employment.

While some J-1 workers undoubtedly have a positive experience with their host employer, others have found the promised cultural exchange and training to be sadly lacking. Unfortunately, some J-1 workers have experienced exploitative working conditions. Dozens of J-1 workers from Asia and Eastern Europe went on strike in 2011 to protest working conditions at the Hershey packing facility where they were placed. A year later, the Department of Labor settled their complaint against the plant for $213,000 in back wages and $143,000 in safety and health violations.

Au pair workers on J-1 visas recently won an important victory when a federal judge in Colorado allowed their lawsuit against multiple cultural exchange sponsoring agencies to go forward. The workers, typically paid $197.75 per week, allege that the sponsoring agencies illegally conspired to keep wages low and failed to ensure they were paid the minimum wage and overtime. Au pair workers can get in touch with the attorneys conducting this litigation here.

J-1 workers in North Carolina can learn more about their rights through the North Carolina Justice Center’s new J-1 worker factsheet, found here.