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Volume XII, Number 276


September 30, 2022

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New Wisconsin Law Declares Franchisors Not Employer of Franchisee Employees

On March 4, 2016, Wisconsin joined the ranks of states that have enacted legislation to protect local franchisees from overreach by the federal government. This new law draws a clear line between franchisors and franchisees, requiring state enforcement agencies to exclude franchisors as employers of franchisees or franchisee employees. The law applies to work performed beginning on March 4, 2016.

The law creates new statutory provisions for workers compensation, unemployment compensation insurance, employment relations and other statutes. This provision states that a franchisor is not the employer of a franchisee or a franchisee’s employees, unless the franchisor has agreed, in writing, to be the employer; or if the Department or Division finds that the franchisor exercised a “type or degree of control over the franchisee or the franchisee’s employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.”

The new law has earned the praise of the International Franchise Association (IFA), the world’s largest organization representing franchise owners. IFA President and CEO, Robert Cresanti, sees the new law as a move to protect the franchise industry, as well as the jobs and opportunities it creates.

While the new law certainly affects how Wisconsin state agencies will approach joint employer status, the law does not necessarily prevent the National Labor Relations Board (NLRB), Equal Employment Opportunity Commission, Department of Labor or Internal Revenue Service from applying their own joint employer standards. As we wrote in the fall of 2015, the NLRB departed from its previously long-held joint employer test (whether a joint employer exercises control over the employees’ terms and conditions of employment) and instead moved to a new test, which only examines whether an employer possesses such control. In fact, earlier this year, Wage and Hour Division (WHD) Administrator David Weil published the Administrator’s Interpretation, which outlines further DOL guidance on finding joint employer status under the Fair Labor Standards Act or the Migrant and Seasonal Agricultural Worker Protection Act. The guidance ended by stating that the WHD would “continue to consider the possibility of joint employment…the expansive definition of ‘employ’ as including ‘to suffer or permit to work’ must be considered when determining joint employment...” The new expansive definition of “employ” makes it likely the federal government would still find joint employer status, even when a state agency may not.

©2022 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume VI, Number 67

About this Author

David W. Croysdale, Michael Best Law Firm, Labor Employment Attorney

David is a zealous and unrelenting advocate in employment and labor relations matters. He also serves as general counsel for selected clients. David’s practice is defined by his singular commitment to helping clients achieve their business objectives.

A seasoned practitioner, David maintains a keen focus on helping clients manage employment law and corporate law risk by point-of-decision counsel and through the general counsel relationship. He brings over 40 years of experience to the bargaining table to achieve cost-effective solutions that preserve and maximize business...

Elizabeth N. Larson, Michael Best, Employment Discrimination Lawyer, Affirmative Action Compliance Attorney

Elizabeth focuses on employment discrimination, affirmative action, and Office of Federal Contract Compliance Programs (OFCCP) matters. Clients value her responsiveness, as well as her attention to detail, in these areas. They also look to her for support with trade secret and non-compete litigation.

Elizabeth previously served as a law clerk for MillerCoors where she researched a variety of legal matters including wage garnishments, disability discrimination, immigration law, alcohol and beverage law, privacy, and intellectual property. She...