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Affirmative Action Ruling May Upend Diversity Hiring Policies, Too
by Evelyn Reynolds 30 June 2023, 21:36
The Supreme Court decision on college admissions could lead companies to alter recruitment and promotion practices to pre-empt legal challenges.As a legal matter, the Supreme Court’s rejection of race-conscious admissions in higher education does not in itself impede employers from pursuing diversity in the workplace.That, at least, is the conclusion of lawyers, diversity experts and political activists across the spectrum — from conservatives who say robust affirmative action programs are already illegal to liberals who argue that they are on firm legal ground.But many experts argue that as a practical matter, the ruling will discourage corporations from putting in place ambitious diversity policies in hiring and promotion — or prompt them to rein in existing policies — by encouraging lawsuits under the existing legal standard.After the decision on Thursday affecting college admissions, law firms encouraged companies to review their diversity policies.“I do worry about corporate counsels who see their main job as keeping organizations from getting sued — I do worry about hyper-compliance,” said Alvin B. Tillery Jr., director of the Center for the Study of Diversity and Democracy at Northwestern University, who advises employers on diversity policies.Programs to foster the hiring and promotion of African Americans and other minority workers have been prominent in corporate America in recent years, especially in the reckoning over race after the 2020 murder of George Floyd by a Minneapolis police officer.Even before the ruling in the college cases, corporations were feeling legal pressure over their diversity efforts. Over the past two years, a lawyer representing a free-market group has sent letters to American Airlines, McDonald’s and many other corporations demanding that they undo hiring policies that the group says are illegal.The free-market group, the National Center for Public Policy Research, acknowledged that the outcome on Thursday did not bear directly on its fight against affirmative-action in corporate America. “Today’s decision is not relevant; it dealt with a special carve-out for education,” said Scott Shepard, a fellow at the center.Mr. Shepard claimed victory nonetheless, arguing that the ruling would help deter employers who might be tempted overstep the law. “It couldn’t be clearer after the decision that fudging it at the edges” is not allowed, he said.(American Airlines and McDonald’s did not respond to requests for comment about their hiring and promotion policies.)Charlotte A. Burrows, who was designated chair of the Equal Employment Opportunity Commission by President Biden, was also quick to declare that nothing had changed. She said the decision “does not address employer efforts to foster diverse and inclusive work forces or to engage the talents of all qualified workers, regardless of their background.”Some companies in the cross hairs of conservative groups underscored the point. “Novartis’s D.E.I. programs are narrowly tailored, fair, equitable and comply with existing law,” the drugmaker said in a statement, referring to diversity, equity and inclusion. Novartis, too, has received a letter from a lawyer representing Mr. Shepard’s group, demanding that it change its policy on hiring law firms.The Supreme Court’s ruling on affirmative action was largely silent on employment-related questions.Kenny Holston/The New York TimesBeyond government contractors, affirmative action policies in the private sector are largely voluntary and governed by state and federal civil rights law. These laws prohibit employers from basing hiring or promotion decisions on a characteristic like race or gender, whether in favor of a candidate or against.The exception, said Jason Schwartz, a partner at the law firm Gibson Dunn, is that companies can take race into account if members of a racial minority were previously excluded from a job category — say, an investment bank recruiting Black bankers after it excluded Black people from such jobs for decades. In some cases, employers can also take into account the historical exclusion of a minority group from an industry — like Black and Latino people in the software industry.In principle, the logic of the Supreme Court’s ruling on college admissions could threaten some of these programs, like those intended to address industrywide discrimination. But even here, the legal case may be a stretch because the way employers typically make decisions about hiring and promotion differs from the way colleges make admissions decisions.“What seems to bother the court is that the admissions programs at issue treated race as a plus without regard to the individual student,” Pauline Kim, a professor at Washington University in St. Louis who specializes in employment law, said in an email. But “employment decisions are more often individualized decisions,” focusing on the fit between a candidate and a job, she said.The more meaningful effect of the court’s decision is likely to be greater pressure on policies that were already on questionable legal ground. Those could include leadership acceleration programs or internship programs that are open only to members of underrepresented minority groups.Many companies may also find themselves vulnerable over policies that comply with civil rights law on paper but violate it in practice, said Mike Delikat, a partner at Orrick who specializes in employment law. For example, a company’s policy may encourage recruiters to seek a more diverse pool of candidates, from which hiring decisions are made without regard to race. But if recruiters carry out the policy in a way that effectively creates a racial quota, he said, that is illegal.“The devil is in the details,” Mr. Delikat said. “Were they interpreting that to mean, ‘Come back with 25 percent of the internship class that has to be from an underrepresented group, and if not you get dinged as a bad recruiter’?”The college admissions cases before the Supreme Court were largely silent on these employment-related questions. Nonetheless, Mr. Delikat said, his firm has been counseling clients ever since the court agreed to hear the cases that they should ensure that their policies are airtight because an increase in litigation is likely.That is partly because of the growing attack from the political right on corporate policies aimed at diversity in hiring and other social and environmental goals.Gov. Ron DeSantis of Florida has signed legislation to limit diversity training in the workplace.Haiyun Jiang for The New York TimesGov. Ron DeSantis of Florida, who is seeking the 2024 Republican presidential nomination, has deplored “the woke mind virus” and proclaimed Florida “the state where woke goes to die.” The state has enacted legislation to limit diversity training in the workplace and has restricted state pension funds from basing investments on “woke environmental, social and corporate governance” considerations.Conservative legal groups have also mobilized on this front. A group run by Stephen Miller, a White House adviser in the Trump administration, contended in letters to the Equal Employment Opportunity Commission that the diversity and inclusion policies of several large companies were illegal and asked the commission to investigate. (Mr. Miller’s group did not respond to a request for comment about those cases.)The National Center for Public Policy Research, which is challenging corporate diversity policies, has sued Starbucks directors and officers after they refused to undo the company’s diversity and inclusion policies in response to a letter demanding that they do so. (Starbucks did not respond to a request for comment for this article, but its directors told the group that it was “not in the best interest of Starbucks to accept the demand and retract the policies.”)Mr. Shepard, the fellow at the center, said more lawsuits were “reasonably likely” if other companies did not accede to demands to rein in their diversity and inclusion policies.One modest way to do so, said David Lopez, a former general counsel for the Equal Employment Opportunity Commission, is to design policies that are race neutral but nonetheless likely to promote diversity — such as giving weight to whether a candidate has overcome significant obstacles.Mr. Lopez noted that, in the Supreme Court’s majority opinion, Chief Justice John G. Roberts Jr. argued that a university could take into account the effect on a candidate of having overcome racial discrimination, as long as the school didn’t consider the candidate’s race per se.But Dr. Tillery of Northwestern said making such changes to business diversity programs could be an overreaction to the ruling. While the federal Civil Rights Act of 1964 generally precludes basing individual hiring and promotion decisions explicitly on race, it allows employers to remove obstacles that prevent companies from having a more diverse work force. Examples include training managers and recruiters to ensure that they aren’t unconsciously discriminating against racial minorities, or advertising jobs on certain campuses to increase the universe of potential applicants.In the end, companies appear to face a greater threat of litigation over discrimination against members of minority groups than from litigation over discrimination against white people. According to the Equal Employment Opportunity Commission, there were about 2,350 charges of that latter form of discrimination in employment in 2021, among about 21,000 race-based charges overall.“There’s an inherent interest in picking your poison,” Dr. Tillery said. “Is it a lawsuit from Stephen Miller’s right-wing group that doesn’t live in the real world? Or is it a lawsuit from someone who says you’re discriminating against your work force and can tweet about how sexist or racist you are?”He added, “I’ll take the Stephen Miller poison any day.”J. Edward Moreno More
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Supreme Court Backs Employer in Suit Over Strike Losses
by Evelyn Reynolds 1 June 2023, 20:29
The justices ruled that federal labor law did not block state courts from ruling on a case regarding damage caused when workers walked off the job.The Supreme Court ruled on Thursday that federal labor law did not protect a union from potential liability for damage that arose during a strike, and that a state court should resolve questions of liability.The majority found that if accusations by an employer are true, actions during a strike by a local Teamsters union were not even arguably protected by federal law because the union took “affirmative steps to endanger” the employer’s property “rather than reasonable precautions to mitigate that risk.” It asked the state court to decide the merits of the accusations.The opinion, written by Justice Amy Coney Barrett, was joined by Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Elena Kagan and Brett M. Kavanaugh.Three conservative justices backed more sweeping concurring opinions. A single justice, Ketanji Brown Jackson, dissented.Some legal experts had said a union setback in the case would discourage workers from striking by making the union potentially liable for losses that an employer incurred during a work stoppage.“It will definitely lead to more expensive-to-resolve lawsuits against labor unions,” said Charlotte Garden, a law professor at the University of Minnesota who was an author of a brief in support of the union. Professor Garden did note, however, that the decision was less far-reaching in discouraging strike activity than it could have been.Others have argued that the ruling was necessary to prevent workers from intentionally harming an employer’s property, an act not protected by federal labor law, and that such restrictions do not jeopardize the right to strike.“Damages from intentional destruction of property are not inherent to the act of striking,” said Michael O’Neill of the Landmark Legal Foundation, a conservative legal advocacy group that submitted a brief in the case. As a result, Mr. O’Neill said, the law does not shield workers or unions from liability for such damage.The case, Glacier Northwest v. International Brotherhood of Teamsters, No. 21-1449, involved unionized employees of a concrete mixing and pouring company who walked off the job during contract negotiations, leaving wet concrete in their trucks. The employer argued that it suffered substantial monetary losses because the abandoned concrete was unusable.The union argued that it had taken reasonable steps to avoid harming the employer’s property, as federal law requires, because workers kept their trucks running as they walked off the job. That allowed the company to dispose of the concrete without damage to the trucks. The union said the lost concrete amounted to the spoilage of a product, for which unions were not typically held liable.At issue were two key questions. The first was procedural: whether the case should be allowed to go forward in state court, as employers generally prefer. The alternative is that the state court — in this case, Washington — should step aside in favor of the National Labor Relations Board, the federal agency responsible for resolving labor disputes.The second question was about what economic damage is acceptable during a strike, and what amounts to vandalism — which federal labor law does not protect — of property or equipment.The two issues are linked because under legal precedent, the labor board is supposed to elbow aside state courts when the alleged actions during the strike are at least “arguably protected” by federal law.The Supreme Court ruled that the union’s actions, as alleged by the employer, were not arguably protected because the spoilage of the product was not merely an indirect result of the strike. Instead, the employer contended in a lawsuit, “the drivers prompted the creation of the perishable product” and then waited until the concrete was inside the trucks before walking off the job.“In so doing, they not only destroyed the concrete but also put Glacier’s trucks in harm’s way,” the majority opinion said. It sent the case back to Washington State court to be litigated.Sean M. O’Brien, the president of the Teamsters, issued a defiant statement after the decision was announced. “The Teamsters will strike any employer, when necessary, no matter their size or the depth of their pockets,” he said.The U.S. Chamber of Commerce said the court “got it right” in ruling that federal law “does not pre-empt state tort claims against a union for intentional destruction of an employer’s property during a labor dispute.”In a concurring opinion, Justice Clarence Thomas agreed that the Washington State court should be allowed to take up the case. He wrote that in a future case, the Supreme Court should reconsider whether the National Labor Relations Board should have such wide latitude to take the first pass in such cases.Justice Jackson noted in her dissent that the labor board had issued its own complaint since the case was first filed in Washington State. In issuing its complaint, the labor board’s general counsel found that the strike activity was in fact protected. This by definition meant that the activity was “arguably protected,” Justice Jackson wrote, requiring the state court to stand down.The decision, which some experts said could cause unions to reconsider striking or take a more cautious approach when a perishable product could be harmed, followed a series of rulings that appeared to scale back the power of unions and workers.The court ruled in 2018 that companies could prohibit workers from collectively bringing legal actions against their employers, even though the National Labor Relations Act protects workers’ rights to engage in so-called concerted activities.In the same year, the court ruled that public-sector unions could no longer require nonmembers to pay fees that help fund bargaining and other activities that unions do on their behalf.In 2021, the court deemed unconstitutional a California regulation that gave unions access to agricultural employers’ property for recruitment.In interviews, union leaders said that the ruling on Thursday would further tilt an already uneven playing field toward employers, and that it was often not a strike itself but the threat of a strike that helped unions win concessions.“Without the threat of a strike, you have little leverage in negotiations,” said Stuart Appelbaum, the president of the Retail, Wholesale and Department Store Union, which has organized successful strikes.Mr. O’Neill’s group, the Landmark Legal Foundation, argued that a ruling against the employer could have jeopardized the labor peace that the National Labor Relations Act was enacted to assure, “placing workers and the public at risk” by essentially blessing acts of vandalism and sabotage.Unions and workers often deliberately plan strikes to exploit employers’ vulnerability — for example, Amazon workers walked out during the holiday season — and rely on an element of surprise to maximize the economic harm they inflict, and therefore the leverage the union gains.In the near term, unions that are contemplating strikes or already striking, such as unions representing Hollywood writers or United Parcel Service employees whose contract expires this summer, may have to take greater precautions to insulate themselves from legal liability.Such precautions will typically weaken the impact of strikes, said Ms. Garden, the University of Minnesota professor. “You could get unions prophylactically adopting less effective tactics — things like giving advance warning about strike, which gives the employer a lot more time to hire replacement workers,” she said.Other unions may simply decide not to strike at all out of fear of heightened legal exposure, she said.Further out, unions and their political allies may seek to enact legislation that explicitly exempts workers from liability for certain types of economic damage that arise during a strike.“There will be efforts in blue states to make the best of it, to do something protective,” said Sharon Block, a former Biden and Obama administration official who is a professor of practice at Harvard Law School.But even these laws could wind up being challenged before the Supreme Court, experts said.Adam Liptak More
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Restaurant Chain Franchises Face Scrutiny From the FTC
by Evelyn Reynolds 26 May 2023, 09:36
Troubles at the restaurant chain Burgerim highlight concerns about whether franchisees need more protection in their contracts with franchisers.“Making It Work” is a series about small-business owners striving to endure hard times.When Kenneth Laskin flew to California to meet with executives at Burgerim, a start-up chain of restaurants, he was made to feel not just like another prospective franchisee, but like part of a family.The company’s executives, he said, made a point one evening of highlighting their common Jewish faith by praying with him in Hebrew.At the time, in 2017, Mr. Laskin believed he was being offered a plum deal. He paid $50,000 for the right to open up as many Burgerim franchised restaurants as he wanted in Oregon. “I got an entire state,” Mr. Laskin recalled.Today, Burgerim has run into trouble, leaving a trail of financial problems, a lawsuit by the Federal Trade Commission and broader regulatory scrutiny of whether protections for franchisees like Mr. Laskin are adequate.The challenges highlighted by Burgerim come as franchising continues to grow as a way that people are choosing to start small businesses.There has been rising concern about whether franchisees need more protection in their contracts with franchisers. That concern has found a sympathetic ear in the Biden administration and in several state legislatures, and has resulted in multiple proposed limits on franchisers’ powers.In the end, Mr. Laskin opened only one Burgerim restaurant, in Eugene, Ore., which closed in 2020 during the pandemic. Since then, Mr. Laskin has been depleting his savings to pay the bills.Burgerim, which boasted of having inventive high-quality burgers, has been criticized by former franchisees for making grand promises and poor disclosure about business risks. Of the more than 1,500 franchises Burgerim sold, most never opened, the commission said in a lawsuit that the agency filed last year against the company and its founder in U.S. District Court in California.Peter Bronstein, a lawyer for Oren Loni, who was the company’s principal executive in the United States, said that Burgerim made some business mistakes but that it was often trying to help its franchisees succeed. The two sides have been in mediation, according to the court file. Kenneth Laskin believed he got a plum deal to start as many Burgerim franchised restaurants as he wanted in Oregon. He ended up opening only one, which closed during the pandemic.Zack Wittman for The New York TimesEven as the pandemic was still bearing down, the number of franchised establishments in the country grew 2.8 percent in 2021 and 2 percent in 2022. That number is expected to increase an additional 2 percent this year, bringing the total to 805,436 franchises, according to the latest data released by the International Franchise Association, an industry group.As the franchising network expands, so does its contribution to the broader economy. Franchises employed 8.4 million people last year, a 3 percent increase from 2021.There is historical evidence, according to the International Franchise Association, that the first U.S. franchise dates back to Ben Franklin, who created a network of printing partnerships.Franchising took root in the American business landscape in the decades following World War II, with the growth of franchised brands like Howard Johnson’s hotels.Sam Falk/The New York TimesToday a fundamental symbiosis drives the business model: Franchisees pay an upfront fee to an franchiser like Dunkin’ Donuts or Applebee’s, which gets them access to all of that brand’s suppliers, advertising and technology. The franchisee can lean on these established systems to get their business up and running quickly rather than having to start from scratch. And the franchiser, in turn, receives the franchising fee, typically tens of thousands of dollars, in addition to a regular royalty payment from the franchisee.“Franchising has always been an on-ramp for the middle class to open their own business,” said Charlie Chase, the chief executive of FirstService Brands, a franchiser of home renovation and painting services.Over the years, Mr. Chase, who has served on the board of directors of the International Franchise Association, said he had helped hundreds of successful franchisees get their start. “We have created a lot of millionaires,” he said.Still, Mr. Chase said he was concerned about how some franchisees were being pushed into businesses without understanding all of the risks.He blames aggressive internet advertising for some of this (Mr. Laskin learned about Burgerim from a Facebook advertisement, for example), and also a network of third-party brokers that often push prospective franchisees to buy multiple franchises at a time.The Federal Trade Commission, under the leadership of Lina Khan, is looking broadly at industry practices including disclosure and issues such as franchisers’ unilaterally changing the terms of an agreement with a franchisee.“Franchising can be a good business model, but it can also lead to a lot of harm,” Elizabeth Wilkins, the director of the commission’s Office of Policy and Planning, said. “We are concerned about instances where the promise does not match with reality. We believe there is a significant gap that is worth our investigation.”In the case against Burgerim, federal officials said that the company executives told franchisees they would refund their franchise fees if their business did not open, but that many people never got their money back. Mr. Bronstein, the lawyer for Mr. Loni, said offering refunds “was not the best way to run a business.”In the years since the 2008 financial crisis and mortgage meltdown, regulators have bolstered protections for consumers by improving disclosure by banks and banning certain fees they can charge. But small businesses, including franchisees, have not benefited from the same extensive regulatory scrutiny.“There is a view in the consumer protection world that small businesses do not get the same level of protections as other consumers,” Samuel Levine, the director of the F.T.C.’s Bureau of Consumer Protection, said. “Yet, consumers and small businesses, including franchisees, face many of the same challenges. That is something we are trying to address.”The F.T.C., under the leadership of Lina Khan, above, is looking broadly at industry practices at franchises including disclosure about business risks. Saul Loeb/Agence France-Presse, via Getty ImagesAs part of that effort, the Federal Trade Commission is looking at how to apply laws like the Robinson-Patman Act, an antitrust law that prevents large corporations from using discriminatory pricing to take advantage of small businesses. The agency also has proposed a rule banning noncompete clauses in employment contracts and may consider limiting the use of noncompete clauses in franchise agreements.When Mr. Laskin bought a franchise, he was not looking to become a millionaire, but rather to build a stable middle-class life.He opened his sole Burgerim store in Oregon in September 2019.But the problems started soon after his grand opening, Mr. Laskin said. Burgerim had not established a reliable food distribution system in Oregon, he said, forcing Mr. Laskin to fend for himself to supply his restaurant. In trying to help new locations get off the ground, the company never collected royalties from the franchisees, which limited its ability to support its restaurant network over the long term, Mr. Bronstein said. Still, he added, there are many Burgerim restaurants that operated successfully.Mr. Laskin kept the business going during the pandemic by offering take out. But he couldn’t find people to work during the lockdowns, which meant he and his wife ran the entire operation themselves.Mr. Laskin, who has severe back pain from years of restaurant work, hoped a franchise would offer him the chance to delegate work to employees and spare his back.But some days, Mr. Laskin would return from the burger restaurant at night unable to walk the final few yards up his driveway because of the pain from standing on his feet all day.The Burgerim leadership, Mr. Laskin said, provided no support during the pandemic.A Burgerim restaurant in Walnut Creek, Calif., last year.Gado/Getty ImagesHe closed his restaurant in May 2020 and moved to Florida. Mr. Laskin, 57, said that his back problems limited the type of work he can do and that it had been difficult finding work after his burger business closed.The struggles of the former Burgerim franchisees were brought to light in 2020 by the publication Restaurant Business, which focuses on the food service industry, in a series of articles.Some franchisees say improving disclosure or increasing regulations on fee structures will not be a panacea in rooting out the industry’s troubled actors.“Transparency is a great thing, but I am not sure more disclosure is going to change any outcomes,” said Greg Flynn, the founder and chief executive of Flynn Restaurant Group, the largest franchisee in the country with 2,400 locations and 73,000 employees, operating brands like Taco Bell, Pizza Hut and Panera.“There are a lot of stories of franchisees buying into a system and then it goes badly for them,” he added. “I would just suggest that they might have had a similar experience outside of a franchise system.”Mr. Laskin says it is not just bad timing or circumstances that were to blame. “The system is fundamentally crippled,’’ he said. “There is too much secrecy. It shouldn’t be this difficult.” More
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JetBlue Expects U.S. Move to Block Merger With Spirit
by Evelyn Reynolds 7 March 2023, 01:51
JetBlue said it saw a “high likelihood” of an antitrust suit by the Justice Department this week, but declared that the deal would foster competition.JetBlue Airways said Monday that it saw a “high likelihood” that the Justice Department would sue the company this week over its planned acquisition of Spirit Airlines. The $3.8 billion deal could create a new challenger to the nation’s four dominant carriers, but would add to industry consolidation.JetBlue said that it had long prepared for such a lawsuit and that its timeline for closing the deal was unchanged, provided it overcomes the expected challenge in court.“We believe there is a high likelihood of a complaint from D.O.J. this week, and we have always accounted for that in our timeline to close the transaction in the first half of 2024,” the company said.Critics of the deal say removing Spirit from the market would limit competition and further consolidate an already concentrated industry. While JetBlue is known for affordable fares, Spirit offers even lower prices, charging extra for everything from printing boarding passes at airport kiosks to selecting seats in advance. After the deal, JetBlue would reconfigure Spirit’s densely packed planes, removing seats, increasing legroom and adjusting the economics of each flight.According to two people familiar with the Justice Department’s plans, a government lawsuit will contend that after removing seats from Spirit planes, the combined airline would not be able to increase revenue per passenger without raising prices.Buying Spirit would allow JetBlue to accelerate its plans for growth. Today, JetBlue controls more than 5 percent of the U.S. airline market. After the acquisition, it would have a 10 percent share, making it the fifth-largest airline in the country. United Airlines, the fourth-largest carrier, has a 15 percent market share. Southwest Airlines, Delta Air Lines and American Airlines each have a more than 17 percent share.“JetBlue’s combination with Spirit allows it to create a compelling national challenger to these dominant airlines,” JetBlue said in a news release on Monday describing some of its arguments in favor of the deal.The acquisition would benefit consumers and disrupt the industry, it said, allowing JetBlue to bring low fares to new markets and forcing those large airlines to match its lower prices. JetBlue also said it had committed to giving up some of Spirit’s holdings in markets such as Boston, New York and Fort Lauderdale, Fla., where the combined airline would have an outsize presence.But the two people familiar with the Justice Department’s plans said its suit would assert that there was no guarantee that other airlines, with different cost structures from Spirit’s, would pick up Spirit slots that JetBlue might offer to shed.In addition to the Justice Department, the Transportation Department could also stand in the way of the deal by blocking the transfer of operating certificates, opponents of the sale have argued.After the expectation of a federal move to block the acquisition was reported on Monday, Spirit shares fell more than 8 percent. JetBlue shares were up about 1 percent.Unions representing workers at both airlines are divided on whether the merger should proceed. Last month, the Association of Flight Attendants-C.W.A., which represents 5,600 flight attendants at Spirit, wrote to Attorney General Merrick B. Garland and Transportation Secretary Pete Buttigieg to express support for the deal.“The JetBlue-Spirit merger will help to correct conditions in the industry with demonstrable improvements and protections for workers along with greater competition that benefits workers and consumers alike,” the union’s president, Sara Nelson, said in the letter. “This is the anti-merger, merger.”In a separate letter, the head of the Transport Workers Union, which represents 6,800 JetBlue flight attendants, asked Mr. Garland and Mr. Buttigieg to prevent the acquisition, arguing that it would violate antitrust laws and undermine competition and workers.In a letter in September, Senator Elizabeth Warren, a Massachusetts Democrat, asked Mr. Buttigieg to use his department’s “historically underutilized” authorities to intervene.JetBlue is also awaiting the outcome of a Justice Department antitrust lawsuit over the airline’s partnership with American in Boston and New York. A federal judge in Boston is expected to issue a decision in that case imminently.Lauren Hirsch More
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When Private Equity Came for the Toddler Gyms
by Evelyn Reynolds 28 January 2023, 09:00
Tiffany Cianci spends most of her days in socks, padding around the fitness studio she operates in Frederick, Md., about an hour outside Washington. Her clients are young: kids ranging from 4 months to 12 years old. They come to learn somersaults, try the monkey bars, sing some songs. (“Little Red Caboose,” complete with a train whistle accompaniment, is one of her favorites.)Ms. Cianci, 41, spent the first part of her career as a sommelier, specializing in sake. In 2017, wanting to leave the hospitality industry for something that allowed her to spend more time at home, she and her husband bought their facility as part of a franchise chain called The Little Gym. Its slogan: “Serious fun.”They got what generations of franchise owners have gotten out of similar deals, with brands like McDonald’s or Jiffy Lube: a known brand name and detailed business plans in exchange for an initial fee and a cut of the revenue. For Ms. Cianci, it was more than just a business.“I love it. I really love it,” said Ms. Cianci, a mother of three who studied dance. “I love my students, and I love that it lets me make a difference.”In the last year and a half, since The Little Gym was acquired by a private equity-backed firm called Unleashed Brands, her work has felt far less idyllic.According to legal filings, internal documents, and interviews with more than half a dozen other franchisees — most of whom requested anonymity so as to avoid retaliation — Unleashed began to demand higher fees and institute more stringent requirements, which the independent owners thought would threaten their profits. The day after Ms. Cianci organized her fellow franchise owners into an association to push back against the changes, the corporate office told her it was terminating her license on the grounds that she was chronically late in paying her fees. Given the timing, Ms. Cianci maintains in the legal filings that it constituted retaliation.Tiffany Cianci, the owner of Teeter Tots, is fighting a court battle against Unleashed Brands, which bought the company that originally franchised her business.Lexey Swall for The New York TimesAlong the way, Unleashed Brands surveilled Ms. Cianci’s business with undercover shoppers, met with her landlord and disparaged her to fellow franchisees. When she tried to salvage her business under a new name — it’s now called Teeter Tots Music n Motion — the company sued, accusing her of violating its trademarks and a noncompete clause in her franchise agreement.The episode has plunged Ms. Cianci about $300,000 into debt and enmeshed Unleashed in a nasty court battle not long after it acquired multiple new brands. The outcome will be a test of just how much a franchisor can unilaterally change the rules of a business relationship that has served as an on-ramp to entrepreneurship for hundreds of thousands of people.The legal fight — along with two others Unleashed has faced with franchisees at its other brands — also reveals the challenges of applying the private equity playbook to the unique world of franchises.Private equity has notched decades of high returns for investors by following a well-worn strategy: acquire distressed or undervalued companies or real estate, increase profits and then sell them. Greatest hits include foreclosed homes, highway rest stops and coal mines bought out of bankruptcy.Franchising has become one of private equity’s targets du jour. According to the research firm FRANdata, the number of franchise brands acquired by private equity firms and other investors rose from 52 in 2019 to 149 in 2021 and was on track to nearly equal that total in 2022.Private equity firms tout their ability to bring new ideas, technologies and efficiencies, and franchises, financially weakened by the pandemic, appeared ripe for those kinds of changes.But the reality is not so straightforward. The nation’s franchisees — 237,619, according to FRANdata — like Ms. Cianci, think of themselves as independent small businesses, who have often sunk their life savings into the enterprise. That’s why Little Gym owners are resisting Unleashed’s attempts to squeeze their profits to pad its own.Unlike, say, factory workers, who can be laid off at will, franchisees are supposed to be protected by legal documents that prescribe a certain business model for years at a time. Moreover, Unleashed — and its investors — need franchisees to stay motivated so they can keep generating revenue and recruit others to keep expanding the franchise system.Ms. Cianci, who is now in arbitration with Unleashed Brands, has been working to change state laws to better protect franchisees who might find themselves in her position down the line. The Federal Trade Commission, meanwhile, is reconsidering federal regulations on franchisors, which haven’t changed for more than a decade.Direct inquiries to Michael Browning Jr., Unleashed’s chief executive and founder, and other executives were not returned. Instead, a public relations firm answered detailed questions via email, saying the company’s changes have improved business across the board. “The financial impact and franchisee benefit of these efforts is undeniable,” the spokesman wrote.Many of the changes, however, are simply not what franchisees say they’d signed up for.“What this reflects is a conflict between the private equity firm that bought this and what they actually bought,” said Francine Lafontaine, an economist at the University of Michigan who specializes in franchise relationships. “In their due diligence, they didn’t seem to think too much about who they were going to be working with once they owned this chain.”‘Candy Land board of life’Ms. Cianci helps Mariah Strawley move her daughter, Brynlee Strawley, 19 months, through an obstacle course during a class.Lexey Swall for The New York TimesMr. Browning, the son of a real estate developer with a background in health care investing, viewed The Little Gym as a perfect part of his vision: He was building a conveyor belt of activities for kids.Mr. Browning spent the 2010s building a franchise called Urban Air, a chain of trampoline parks where parents could spend $700 on a birthday party to remember for their seventh grader. The venture was staked by Mr. Browning and his father and eventually Urban Air formed Unleashed.Private equity was also interested in the Brownings’ growing business. While a company spokesman did not clarify the company’s relationship with private equity, on the websites of the private equity firms AHR Growth Partners, Mantucket Capital and MPK Equity Partners, Unleashed or its brands are listed among their current or recent investments.In 2021, Mr. Browning decided to scale up, following a hot new trend in private equity: building “platforms” to consolidate several brands in a similar industry that could then cross-sell a range of services to their customers, as well as sell more franchises to their existing franchisees. Mr. Browning would often mention Neighborly, a roll-up of home services offerings that had been bought by the private equity giant KKR, as his model.“If I have five home services brands, I can pitch all those services to the same customer,” said Ritwik Donde, senior research analyst at FRANdata, which helps investors vet potential acquisitions. “Those complementary systems lower the cost of customer acquisition. ”Mr. Browning’s company, Unleashed Brands, began buying other youth enrichment chains. Parents — always moms, in Mr. Browning’s conception — could then spend money at his companies from the birth of their kids through high school graduation.Ms. Cianci was immediately skeptical of Mr. Browning’s vision for rapidly collecting children’s services and integrating their sales, operations and marketing.“That might be OK when you’re cleaning a dryer vent, but it’s not when you’re throwing around a 4-month-old and you need them to be safe,” Ms. Cianci said. “He was moving faster than he would need to get to know the business.”Ms. Cianci helped organize a group of Little Gym franchisees to contest some new requirements imposed by Unleashed Brands.Lexey Swall for The New York TimesTo kick off the new program, Unleashed invited all of its newly acquired franchisees to a conference in Orlando in October 2021, including Little Gym’s approximately 175 owners. The company rented out the Wizarding World of Harry Potter and held a fireworks show. And Mr. Browning treated attendees to a speech he called “vision casting,” in which he articulated his plans for building a family of children’s brands that families could spend money on from birth to age 18.The “Candy Land board of life,” he called it. He promised new tech tools that would make their lives easier. “Auto-magic,” he called it.Changes didn’t take long. Within weeks, long-tenured headquarters employees started leaving. In conversations with franchisees across the country, numerous owners expressed frustration that the support they depended on had evaporated; instead of calling a trusted adviser whenever they wanted, they had to file an online ticket. (Unleashed said that it “never sought to cut access” to its staff and that the ticket system was instituted to make sure they were responding in a timely fashion.)The company tried to impose a new payroll vendor that caused unending headaches. Certain activities, such as karate, were eliminated as Unleashed acquired businesses with similar programming; the company said it trimmed services with low enrollment to “streamline” the offerings. The company also outlined a process by which franchisees could lose their licenses if they failed to meet brand standards, which set a sour tone among some of the operators. To people who’d just made it through a pandemic and operated on thin margins even in good times, the changes felt unnecessary and destabilizing.In the fall of 2021, the company required all franchisees to sign a new agreement allowing Unleashed to automatically debit their bank accounts. Ms. Cianci noticed that it also contained broad language allowing the company to extract any other fees that might be owed, which she believed went beyond her franchise agreement.Under the advice of a lawyer, she refused to sign it and started to send her royalty payments via paper check. But she worried that most franchisees would simply accept the new arrangement, along with another requiring them to use — and pay for — a shared call center.To sound the alarm to others, Ms. Cianci held conference calls, often with a lawyer present. As concerns spread, in May a group of Little Gym franchisees formed the Happy Handstands Franchisee Association, which ultimately reached more than 90 percent participation from across the system. Ms. Cianci was elected president. The company started sending warning notices to franchisees who hadn’t signed the new agreements.On May 19, 2022, Happy Handstands’ lawyers sent Unleashed a cease-and-desist letter on behalf of the membership. The very next evening, an email popped up saying Ms. Cianci’s franchise had been terminated. When she tried to check it, her email account was gone, too. Unleashed said the company didn’t know she was the association’s president when they decided to terminate her. Ms. Cianci said it was widely known across the system and mentioned in a Facebook group visible to lower-level corporate executives.To save her business, Ms. Cianci went before an arbitrator and filed for a preliminary injunction decrying the termination as retaliatory; the arbitrator ruled that she hadn’t cleared the high legal bar necessary to stop the process. After that, she started tearing down all her Little Gym branding and adapting her curriculum so as not to violate the company’s trademarks. She paused when Unleashed’s lawyers wanted to discuss a settlement, which she said she rejected over its harsh terms. When they demanded she finish the process of “de-identifying” as a Little Gym immediately, she had difficulty getting started again because she had surgery on a broken foot.In June and July, the company sent undercover shoppers, including one who was a licensed private investigator, who posed as parents and asked Ms. Cianci’s employees what kinds of lessons they offered and whether they overlapped with The Little Gym’s programming. In early July, Unleashed, with the help of outside counsel DLA Piper, sued her in the superior court of Arizona for Maricopa County, where The Little Gym is based. The company accused her of failing to eliminate all branding fast enough, offering declarations from the investigators as evidence — the color scheme looked the same, for example, and a Wi-Fi network was still “TheLittleGym,” password “SeriousFun.”Soon after, the company’s lawyers also visited her landlord in Frederick, which Unleashed said was “part of a standard process to inquire as to the status of the lease.” According to Ms. Cianci’s notes from her subsequent conversation with the landlord, the lawyers told him that she was in legal trouble and wouldn’t be able to keep paying rent.Her landlord then sent her a letter, which was filed as evidence in court, declining to renew her lease and demanding more than $275,000 in back rent, including real estate taxes, most of which Ms. Cianci thought had been forgiven during the pandemic. Unleashed then exercised its option to take over the lease, although the building remains empty. (Her landlord declined to comment.)In mid-July, Unleashed Brands’ chief legal officer, Stephen Polozola, sent all Little Gym franchisees an email titled “Friendly Reminder on Confidentiality.” In it, without naming Ms. Cianci, he warned them not to share any information with a certain former franchisee, who he said had been terminated for not paying royalty fees on time.Further, he wrote that the company had received reports from “no less than seven” former employees who said that the unnamed franchisee had underpaid them and created a hostile work environment. The email finished with a grainy screenshot of a Facebook post containing a vulgar message that Mr. Polozola said had come from that same franchisee but didn’t have her name attached.The battle has put Ms. Cianci about $300,000 in debt and enmeshed Unleashed in a nasty court battle just as it tries to get its investment strategy off the ground.Lexey Swall for The New York TimesMs. Cianci, who had taken her son to a water park for his birthday, immediately started getting messages from other franchisees. None of it was true, she told them. As she would detail in court documents, the company allowed late payments for nearly all franchisees during the pandemic, and her gym had been closed by local ordinance for longer than most. She had continued to send her royalties in the mail, even after she refused to sign Unleashed’s new payment form, she said, and she was current on all her accounts when she was terminated. And the inappropriate Facebook post? She said she hadn’t written it.The allegations by Ms. Cianci’s former employees that Mr. Polozola referred to in his “friendly reminder” email sprang from messages that were sent by the workers in April 2021, before the Little Gym changed hands. After an investigation, no action was taken. The Unleashed spokesman said the company had relied on Ms. Cianci’s assurance that she would resolve the matter with the Maryland Department of Labor. Ms. Cianci said she made no such assurance.In response to an inquiry from The New York Times, the Department of Labor provided records showing a total of five complaints against Ms. Cianci for unpaid wages since 2017, two of which she resolved by paying her former employees; two were dropped; and one is still pending.But the emails from the former employees, which Unleashed supplied to The Times in unredacted form, detail complaints other than unpaid wages — such as dealing pills and mistreating children — that would seem to merit more immediate action by corporate headquarters, and which Ms. Cianci strongly denies.In late summer of 2021, when one of the former employees contacted Unleashed again, Mr. Polozola told Ms. Cianci to ignore it, according to an email exchange she provided — until he brought the complaints back up to discredit her nearly a year later.Arguing that such tactics seemed far outside the norms of legal practice, in September Ms. Cianci’s team filed a defense of so-called unclean hands, making the case that Unleashed Brands’ conduct had so tainted the proceedings that the judge should rule in their favor.But their motion never went anywhere. Before the judge could rule on it, Unleashed filed to dismiss its own case, arguing that its complaint that Ms. Cianci was essentially operating an unauthorized Little Gym was moot because her landlord had evicted her.The upshot of all this legal wrangling is that the fight between Ms. Cianci and Unleashed continues in arbitration in Arizona. In arbitration, potential damages are more limited, proceedings are sealed, and no precedent is created for other cases.Unleashed is fighting to stop Ms. Cianci from running what it says is a competing gym. Ms. Cianci is fighting for the chance to keep her new business and recoup the hundreds of thousands of dollars she has now spent on lawyers.One of them, Peter Lagarias, began his career at the F.T.C., enforcing the agency’s then-new franchise rule in the late 1970s, and spent most of his career advocating for franchisees both in the courtroom and the California statehouse. He took her case for a low rate, but arbitrators, whose cost must be split by both parties, can run tens of thousands of dollars, too.“They don’t want money,” Ms. Cianci said of Unleashed. “They want to destroy my life.”‘You can’t treat every business the same’Bill Walenda, 55, also got into running Little Gyms as a second career. After years as a financial planner, he wanted to buy a franchise — maybe a McDonald’s or a Dunkin’ Donuts — and his wife suggested The Little Gym, since he loved working with children. He opened a gym in New Jersey in 2002 and bought another in Illinois in 2009.After Ms. Cianci’s franchise was terminated, the Happy Handstands Franchisee Association fractured over strategy. Another group of owners started an association with a different approach: working “collaboratively” with the corporate office to provide feedback on changes. Mr. Walenda was elected president, and he has had limited success.He has been fighting a new point-of-sale system with a credit card processor controlled by Unleashed, which franchisees say is keeping customer payments for more than a week before sending them to gym owners, creating a cash flow crunch for owners. (Unleashed said the system keeps money for only two or three days.)The company also continues to try to make everyone use its new shared call center, which Mr. Walenda said would “take us out of the equation of dealing with our customers” — something that might work for a business like Urban Air, which processes thousands of people a week, but not the familial relationships on which The Little Gym operated for decades.“You can’t treat every business the same,” Mr. Walenda said. “And that’s really what’s causing all of this strife.”In November, Unleashed introduced a revised operations manual that lays out new rules and fees. It specifies the hours the businesses must be open, how quickly they must return customer calls, which architect they must use and what company meetings they must attend. Staff salaries were only supposed to make up 30 percent of revenue. The technology fee can rise to $399 from $119.The national advertising fee can rise to 5 percent of gross sales from 1 percent; part of that will go to a fund that supports other Unleashed properties. New fees appeared, including a $30,000 fee to renew the franchise agreement, and a fee of about $15,000 to relocate the facility. For some owners, the changes seem to mean that they can no longer operate profitably and will have to sell rather than renew.Unleashed said the changes only apply to new franchisees, and Mr. Walenda said his group has been able to negotiate away some of the fees even for them. But other fees remain, including a $100,000 payment if the franchise is terminated, and Mr. Walenda said the company continues to try to force everyone to use its call center and point-of-sale system. As much as he believes in the collaborative approach, he’s willing to litigate to stop the attempts to extract more money.“That’s all private equity cares about, as far as I’m concerned,” Mr. Walenda said. His business is doing well, which he credits to the postpandemic desperation for children’s activities; he said Unleashed’s new systems have mostly just taken more time for his managers to deal with.“We’re not people, we’re not businesses, we’re just numbers to them,” Mr. Walenda said. “And that’s a problem. Because ‘Let’s just keep squeezing everything we can out of them until we can’t squeeze anymore’ — it’s a good way of making money. It’s not a very good way to run a business.”Ms. Cianci says she hopes to prove that it’s possible to resist a franchiser’s efforts to impose its will outside what are supposed to be legally binding agreements.Lexey Swall for The New York TimesAfter a year of owning The Little Gym, Unleashed Brands says that average gym revenue rose 36.8 percent in 2022 over 2019. And its franchisee recruitment has focused on people who want to open multiple units, such as Cody Herndon, whom Unleashed provided as an example of a Little Gym owner with a more positive view of management.An Urban Air operator who sold one of his two parks to another private equity investor, Mr. Herndon bought the rights to open three Little Gyms in Texas last year. He said he was drawn by the opportunity to have longer-term relationships with families and thought the new systems Unleashed was pushing would work out in the end.“There are going to be so many massive benefits to any change that’s been asked,” Mr. Herndon said.While disclosing few other metrics, the company told Axios in May that it expected to generate $160 million in revenue in 2022 and was shopping for a buyer. It appears to have found one.Unleashed’s current private equity investors are selling their stakes in the company imminently, according to a company spokesman. But the company declined to disclose the buyer or the terms of the deal.Whoever the buyer may be, they’ve got significant franchisee rancor on their hands — even beyond the Little Gym.At Mr. Browning’s original chain, Urban Air, a franchisee association representing more than 50 owners tried to bring a lawsuit in 2020 over what it viewed as unfair changes that had revealed the “terms and provisions of the franchise agreements upon which investment decisions were made to be illusory and meaningless.” But a Texas court threw the case out on technical grounds, and with individual arbitration the only path forward, the effort fell apart.In late 2022, Unleashed was also sued by 54 franchisees of its Premier Martial Arts brand who said in legal filings that the franchisor gave them an unrealistic impression of the cost of running a martial arts studio, leaving them with dead-end businesses and debt.Michelle and Peter Silberman of Wexford, Pa., depleted their retirement savings, maxed out their credit cards and took out a home-equity loan to acquire three Premier Martial Arts territories in 2020.Ross Mantle for The New York TimesMichelle and Peter Silberman depleted their retirement savings, maxed out their credit cards and took out a home-equity loan to acquire three Premier Martial Arts territories in March 2020, before Unleashed owned the franchisor. The first opened near their home in the Pittsburgh area in May 2022. Mr. Silberman said Premier Martial Arts told them that they could expect profit margins as high as 48 percent, while running the studios as “semi-absentee” owners who had to run the business as little as 10 hours a week.The couple was charging parents $138 a month, which included two classes a week. The Silbermans, who had no experience with martial arts, said they relied on the company’s assurances that it would help them manage the business.But when attendance began to decline and expenses were piling up — the couple spent $370,000 acquiring the territories and operating the one facility — Mr. Silberman said Premier Martial Arts offered little additional help. Their studio closed this past fall. Although the trouble began long before Unleashed announced that it had bought Premier Martial Arts in early 2022, the lawsuit states that after the acquisition, “the same false statements were still made and the same bogus model was pitched.”In response, the Unleashed spokesman said the company is “not a party to any contract” with a Premier Martial Arts franchisee.As for the Silbermans, they have been trying to pay down their debts.“We are, hopefully, going to avoid bankruptcy by the skin of our teeth,” said Mr. Silberman.New rules for franchisesMs. Cianci’s case is winding its way through arbitration. Her new gym in a suburban mall next to Macy’s has only about 74 members, compared with the 275 she had before her termination by Unleashed. She said her husband, a federal trademark attorney, is working long hours to support them.In the meantime, she’s trying to prevent future franchisees from being put in the situation she found herself in.As the F.T.C. reviews the rules governing franchising, advocates have urged the commission to add stronger protections, such as more disclosure of how the average franchise location performs. The International Franchise Association — whose board Mr. Browning recently joined — has lobbied hard to avert those changes.In Congress, Senator Catherine Cortez Masto, a Democrat from Nevada, has done extensive research on problems with the franchise system and introduced two bills seeking to give franchisees more leverage. But their fate is uncertain.That’s why Ms. Cianci is focused on the states. Specifically Arizona, where The Little Gym headquarters is based. Lawmakers have introduced a bill that would protect franchisees’ right to form associations, require changes to their agreements to be presented in contractual form, and limit the circumstances under which their licenses could be terminated.At the very least, she hopes her case will ultimately prove that it’s possible to resist a franchisor’s efforts to impose its will outside what are supposed to be legally binding agreements, whether it’s how many birthday parties to offer or which insurance company to use.“That’s exactly what went wrong here,” Ms. Cianci said. “He’s buying companies where people had rights.” More
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Labor Agency Seeks Broad Order Against Starbucks in Federal Court
by Evelyn Reynolds 22 June 2022, 17:58
Federal labor regulators have asked a court to force Starbucks to stop what they say is extensive illegal activity in response to a nationwide campaign in which workers at more than 150 corporate-owned stores have voted to unionize.In a petition filed Tuesday with U.S. District Court in Buffalo, officials with the National Labor Relations Board accused the company of firing and disciplining union supporters; intimidating and threatening workers to discourage them from voting for the union; and effectively offering benefits to workers if they opposed the union.The agency is also seeking the reinstatement of seven Buffalo-area employees whom, it said, Starbucks had illegally forced out in retaliation for their union-organizing activities, and an order effectively recognizing the union in a Buffalo-area store where the union lost a vote despite strong initial support.The agency said in its filings that the court’s intervention was necessary to stop Starbucks’s “virulent, widespread and well-orchestrated response to employees’ protected organizing efforts” and that without the proposed remedies, Starbucks would “accomplish its unlawful objective of chilling union support, both in Buffalo and nationwide.”Reggie Borges, a Starbucks spokesman, rejected the accusations. “As we have said previously, we believe these claims are false and will be prepared to defend our case,” Mr. Borges wrote in an email.Matt Bodie, a former lawyer for the labor board who teaches labor law at St. Louis University, said it was not unusual for the agency to seek reinstatement of ousted workers. But he said the nationwide breadth of the injunction the agency was seeking was far less common, as was the request for the court to order recognition of a union at a store where the union initially lost its election.“It’s a big step in line with the Biden board’s commitment to a more rigorous and aggressive approach to labor law enforcement,” Mr. Bodie wrote in an email.The labor board has already issued more than 30 formal complaints finding merit in allegations similar to the ones it cataloged in its petition on Tuesday. It typically takes months or years to adjudicate such complaints, and the board asserted that allowing the process to run its course while the company continued to break the law would “cement this chill and nullify the impact of a final remedy.”The agency said that unlawful anti-union activity had begun shortly after workers in Buffalo went public with their union campaign in late August, and that it had escalated after two Buffalo-area stores won union votes in December. It said Starbucks had forced out several union supporters for violating rules that the company had not previously enforced.The company “quickly jettisoned its past practices to target union supporters more effectively,” the labor board wrote.A federal judge recently denied the labor board’s request to reinstate pro-union workers it said Starbucks had unlawfully forced out in a similar, if narrower, case in Arizona.The judge found that in the case of two workers, there was not evidence of retaliation for union activities, or the evidence was “inconsistent” with the accusations.In the case of a third worker, the judge found that both sides had arguments supporting their positions and that an administrative proceeding might ultimately show that Starbucks sought to retaliate over the worker’s union activities. But the judge concluded that Starbucks would have fired the worker even absent her union involvement. More
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U.S. Tries New Tactic to Protect Workers’ Pay: Antitrust Law
by Evelyn Reynolds 14 April 2022, 09:00
The Justice Department is using antitrust law to charge employers with colluding to hold down wages. The move adds to a barrage of civil challenges.Antitrust suits have long been part of the federal government’s arsenal to keep corporations from colluding or combining in ways that raise prices and hurt the consumer. Now the government is deploying the same weapon in another cause: protecting workers’ pay.In a first, the Justice Department has brought a series of criminal cases against employers for colluding to suppress wages. The push started in December 2020, under the Trump administration, with an indictment accusing a staffing agency in the Dallas-Fort Worth area of agreeing with rivals to suppress the pay of physical therapists. The department has now filed six criminal cases under the pillar of antitrust law, the Sherman Act, including prosecutions of employers of home health aides, nurses and aerospace engineers.“Labor market collusion dots the entirety of the U.S. economy,” said Doha Mekki, principal deputy assistant attorney general in the department’s antitrust division. “We’ve seen it in sectors across the board.”If the courts are swayed by the government’s arguments, they could drastically alter the relationship between workers and their employers across large swaths of the economy.“The expansion of Sherman Act criminal violations changes the ballgame when it comes to how companies engage with their workers,” noted an analysis by lawyers at White & Case, including J. Mark Gidley, chair of the firm’s global antitrust and competition practice. “Executives and managers could face jail time for proven horizontal wage-fixing conspiracies.” In addition to fines for corporations or individuals, the Sherman Act provides for prison terms of up to 10 years.The Biden administration is also deploying antitrust law in civil cases to shore up workers’ pay. And in another first, the Justice Department filed a lawsuit in November to stop Penguin Random House’s attempt to buy Simon & Schuster on the grounds that the resulting publishing Goliath would have the power to depress advances and royalty payments to authors.The move to block the publishers’ merger “declines to even allege the historically key antitrust harm — increased prices,” the White & Case lawyers argued. It is “emblematic of the Biden administration’s and the new populist antitrust movement’s push to direct the purpose of antitrust away from consumer welfare price effects and towards other social harms.”And yet the Justice Department’s push builds on a rationale for criminal antitrust enforcement articulated since the Obama administration. “Colluding to fix wages is no different than colluding to suppress the prices of auto parts or homes sold at auction,” said Renata Hesse, acting assistant attorney general for antitrust, in November 2016. “Naked wage-fixing or no-poach agreements eliminate competition in the same irredeemable way as per se unlawful price-fixing and customer-allocation agreements do.”The Biden administration has picked up the argument with a vengeance. Last summer, President Biden issued an executive order mandating a “whole of government” effort to promote competition across the economy. Last month, the Treasury Department issued a report on just how anticompetitive labor markets have become.Corporate America is alarmed. “In their minds, everything is an antitrust issue,” said Sean Heather, senior vice president for antitrust at the U.S. Chamber of Commerce. “There is a role for antitrust in labor markets,” he added. “But it is a limited one.”The State of Jobs in the United StatesJob openings and the number of workers voluntarily leaving their positions in the United States remained near record levels in March.March Jobs Report: U.S. employers added 431,000 jobs and the unemployment rate fell to 3.6 percent in the third month of 2022.A Strong Job Market: Data from the Labor Department showed that job openings remained near record levels in February.New Career Paths: For some, the Covid-19 crisis presented an opportunity to change course. Here is how these six people pivoted professionally.Return to the Office: Many companies are loosening Covid safety rules, leaving people to navigate social distancing on their own. Some workers are concerned.The latest criminal indictment, brought in January against owners and managers of four home health care agencies in Portland, Maine, is emblematic of the new approach.According to the indictment, the agencies agreed to keep the wage of health aides at $16 to $17 an hour. They encouraged other agencies to sign on, prosecutors said, and threatened an agency that raised its pay to between $17 and $18.50.The agencies’ margin is essentially the difference between the wage and the reimbursement from the Maine Department of Health and Human Services. In April 2020, the department raised the rate to $26.20 an hour, from $20.52, explicitly to “fund pay raises for approximately 20,000 workers,” according to the indictment.The agencies’ agreement, the indictment said, was “a per se unlawful, and thus unreasonable, restraint of interstate trade and commerce in violation of Section l of the Sherman Act.”That blows directly against the position of the Chamber of Commerce. Last April, it filed a brief in a similar case, opposing the government’s argument against an outpatient medical care facility that agreed with a rival not to solicit each other’s employees. The Justice Department was overstepping, the brief argued, because the company couldn’t know the behavior was “per se” illegal — an outright breach of the law irrespective of its effects — since the government’s argument had not been tested in court.American companies “are entitled to fair notice of what conduct is and is not prohibited by the federal antitrust laws,” it argued. “Because no court has previously held that nonsolicitation agreements are per se illegal, this prosecution falls far short of the fair notice that due process requires.”A federal court in a separate case has since sided with the government’s interpretation. In November, Judge Amos L. Mazzant III of the United States District Court in the Eastern District of Texas denied a motion to dismiss a federal criminal indictment alleging wage-fixing at a staffing company providing physical therapists, agreeing that price fixing would be “per se” illegal and that the defendants had fair warning that their behavior was against the law.But beyond the legal wrangling brought about by the Justice Department’s new approach, there are striking examples of efforts by employers to suppress wages.“I suspect those things are all over the place,” said Ioana Marinescu, an economist at the University of Pennsylvania’s School of Social Policy and Practice, whether it is employers hoarding highly paid computer engineers or chicken plants paying $15 an hour. “The benefits of collusion may not be super large, but if the costs are quite low, why not do it if you can extract profit?”Until recently, over half of all franchise agreements in the United States, at companies including McDonald’s, Jiffy Lube and H&R Block, included provisions barring franchisees from hiring one another’s workers, according to research by the economists Alan B. Krueger and Orley Ashenfelter. Economic analysis has found that suppressing competition for workers, reducing their options, generally means lower wages. After challenges from several state attorneys general, hundreds of companies abandoned the practice.Another study found that 18 percent of workers are under contracts that forbid moving to a competitor. Most are highly skilled and well paid. Employers who invest in their training can plausibly argue that the noncompete clauses protect their investment and prevent workers from taking valuable information to a rival.But such provisions cover 14 percent of less-educated workers and 13 percent of low-wage workers, who receive little or no training and hold no trade secrets. Several states have challenged the provisions in court. Some, including California, Oklahoma and North Dakota, have prohibited their enforcement.Then there is the litigation. There are civil cases from the 1990s: one by the Justice Department against the Utah Society for Healthcare Human Resources Administration and several hospitals in the state that shared wage information about registered nurses and matched one another’s wages, keeping their pay low. Lawsuits filed by nurses in 2006 accusing hospital systems of conspiring to suppress their wages led to multimillion-dollar settlements in Albany and Detroit.In 2007, the Justice Department sued the Arizona Hospital and Healthcare Association for fixing the rates that hospitals paid to nursing agencies for their temporary nurses, putting a cap on their wages. In settling the case, the association agreed to abandon the practice.The pace picked up after a Justice Department lawsuit in 2010 taking aim at no-poaching agreements involving Adobe, Apple, Google, Intel, Intuit, Pixar and later Lucasfilm. The companies settled the case without admitting guilt or paying fines, but Adobe, Apple, Google and Intel paid $415 million to settle a subsequent class-action lawsuit.Since then, lawsuits have been filed across the industrial landscape. Pixar, Disney and Lucasfilm paid $100 million to settle an antitrust challenge to their agreements not to hire one another’s animation engineers. In 2019, 15 “cultural exchange” sponsors designated by the State Department paid $65.5 million to settle a lawsuit claiming, among other things, that they colluded to depress the wages of tens of thousands of au pairs on J-1 visas. Since 2019 Duke University and the University of North Carolina have paid nearly $75 million to settle two antitrust cases over agreements not to recruit each other’s faculty members.This month, Local 32BJ of the Service Employees International Union filed a complaint with the Federal Trade Commission arguing that Planned Companies, one of the largest building services contractors in the Northeast and Mid-Atlantic, illegally forbids its clients to hire its janitors, concierges or security guards either directly or through another firm — locking its workers in.In perhaps the biggest case of all, in 2019 a class action was filed against the American chicken industry, growing to cover some 20 producers responsible for about 90 percent of the poultry market. The complaint accused them of exchanging detailed wage information to fix the wages of about a quarter-million employees, including hourly workers deboning chickens, refrigeration technicians and feed-mill supervisors on a salary.Four of the chicken processors have settled, agreeing to pay tens of millions of dollars. In February, Webber, Meng, Sahl & Company, one of two firms that collected wage data for the poultry companies, settled as well, offering a fairly clear window into the industry’s attempts to suppress wages.In a declaration to the court, part of the settlement agreement, the law firm’s president, Jonathan Meng, said the chicken companies had used the firm “as an unwitting tool to conceal their misconduct.” He offered details about how poultry executives would share detailed wage information. “They wanted to know how much and when their competitors were planning to increase salaries and salary ranges,” he said, because it would allow them “to limit and reduce their salary increases and salary range increases.”Most of the defendants, however, are still contesting the case. They have argued that to prove collusion, the plaintiffs must show that wages across the industry moved in tandem, an argument the court has yet to rule on.Another hurdle is convincing judges that chicken industry workers amount to a specific occupation. If workers deboning chickens could easily leave the poultry industry to work for a better wage at McDonald’s or 7-Eleven, they would have a tougher case to prove that anticompetitive practices by poultry processors caused them direct harm.In pursuing such cases, the government is likely to be challenged by corporate groups every step of the way.Mr. Heather at the Chamber of Commerce, for one, argues that “this narrative that lax antitrust is responsible for income inequality” is wrong. He notes a study sponsored by the chamber showing that corporate concentration is no higher than in 2002 and has been declining since 2007. “The heart of the premise is just flawed,” Mr. Heather said.Moreover, Mr. Heather said, labor markets are already covered by labor laws. “The chamber has an objection to the blending of antitrust and workplace regulation,” he said.Mr. Gidley of White & Case broadly agrees. “It is intriguing to us to see the last 40 years of antitrust law thrown out the window,” he said in an interview. “If antitrust is no longer about low prices but about a clean environment and wages and this, that and the other, it loses its compass.” More
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Truck Drivers’ On-the-Job Training Can Be Costly if They Quit
by Evelyn Reynolds 5 April 2022, 15:00
Wayne Orr didn’t yet know that his foot was broken as he made his way back from Texas to his home in South Carolina, but he did know that he couldn’t continue pressing the pedals on the tractor-trailer he had been driving.A new driver only a few months past his training period, he had to sit out for six weeks without pay. Then, when his foot finally healed, he discovered that his company, CRST Expedited, had fired him. Frustrated and needing a paycheck, he found a new job driving for Schneider International, but was once again stymied: CRST threatened to sue Schneider for hiring him, he said.“I called CRST and they told me that they would not take me back and that I had to pay them $6,500 or I could never drive for another company, either,” Mr. Orr, 59, said.He had signed a contract to work for CRST for 10 months in exchange for a two-week training course. If he didn’t last 10 months, the contract required him to pay the company $6,500 for that training.Each year, thousands of aspiring truck drivers sign up for training with some of the nation’s biggest freight haulers. But the training programs often fail to deliver the compensation and working conditions they promise. And drivers who quit early can be pursued by debt collectors and blacklisted by other companies in the industry, making it difficult for them to find a new job.At least 18 companies, employing tens of thousands of drivers, run programs aimed at qualifying trainees for a commercial driver’s license, or C.D.L. Typically, to get free training, the new hires must drive for the company for six months to about two years, usually starting at a reduced wage.The companies “sign them into this indentured servitude contract where they basically have to drive and be a profit source for the company,” said Michael Young, a lawyer in Utah representing a former trainee in a lawsuit against C.R. England, a privately held trucking company that employs about 4,800 drivers.With e-commerce leading Americans to expect quick delivery, trucking companies face pressure to haul more and do it faster. The American Trucking Associations, a trade association, has warned of a vast truck driver shortage. But researchers and drivers’ representatives maintain that the high turnover occurs because too many large companies fail to make their jobs attractive enough. The industry has been plagued with class-action lawsuits about working conditions and wages, leading to hundreds of millions of dollars in settlements.Nine in 10 drivers leave their jobs within a year at large carriers like CRST and C.R. England, according to the trucking trade group. The companies need a constant flow of new recruits to keep revenue up, and without locking them into a contract, they risk losing their newly trained drivers to competitors offering a higher wage.“We think paying for C.D.L. school is a great benefit we can offer but not one that we can afford to do if folks do not come work with our team or ultimately pay us back,” said TJ England, chief legal officer of C.R. England. “If people just want to go to a different company, that’s where we try to protect our investment.”On the Road With America’s Truck DriversThe Cost of Quitting: Thousands of aspiring truckers sign up for training each year. But if they quit early, they may be pursued by debt collectors.Trucker Shortages: The real reason there aren’t enough drivers? It is a job full of stress, physical deprivation and loneliness.Supply Chain Issues: A wave of trucker retirements combined with those quitting for less stressful jobs is exacerbating shipping delays.‘We’re Throwaway People’: Trucking is no longer the road to the middle class that it once was. In 2017, we asked drivers why they do it.CRST, an Iowa-based company, would not answer specific questions for this article but said in an emailed statement that its training program “has brought thousands of drivers into the industry who may not otherwise have been able to obtain a commercial driver’s license.” As for Mr. Orr’s account, a spokeswoman would say only that it omitted key facts.The New York Times and The Hechinger Report, a nonprofit news organization, interviewed more than 30 current and former truckers with direct knowledge of company training programs, including 15 who had gone through them. Almost all 15 left before their contracts were up, despite intending to stick it out. One was given only four days at home in the four months he drove for CRST, just a quarter of what he said was promised in his contract, according to a complaint filed with the Iowa attorney general’s office.Others described weeks of unpaid time spent waiting for trainers. Many said they were never told that they would sit for hours, unpaid, while they waited for their trucks to be loaded and unloaded, or even for days to get a new assignment. Many drivers said they were told by the companies that they would make more than they did. Since drivers are paid by the mile, the time spent waiting cut significantly into their paychecks.In job advertisements and in their pitches to recruits, companies promise earnings of up to $70,000 in the first year and even higher salaries in the future. But the median annual wage for all truck drivers, regardless of experience, was $47,000 in May 2020, according to the most recent data from the Bureau of Labor Statistics. Only the top 10 percent of earners were making above $69,500.Wayne Orr attended CRST’s training program in 2019. “That training program is like a money mill to them,” he said. Sean Rayford for The New York TimesStill, many are attracted to trucking despite its sometimes punishing demands, seeing it as a possible on-ramp to the middle class. New drivers can train at independent schools, which can be expensive, or community colleges, which may take more time. Company training programs are a popular option for those eager for a paycheck right away.Many large companies start classes weekly; keeping a constant flow of people is crucial. They deputize their drivers, offering referral bonuses for every new person brought on board, and employ recruiters to pursue anyone who has expressed interest. In a training manual filed as an exhibit to a lawsuit in 2021, CRST instructed recruiters: “Create urgency. Tell the applicant we have a ‘few’ spots open. Our school and orientation will fill up quickly.”At most company schools, trainees typically spend two to four weeks learning in a classroom and in parking lots. Many former trainees said that the instruction was insufficient and that they spent little time in trucks.Amy Jeschke attended C.R. England’s program in Indiana in 2019. She went out on the road only twice during her training, she said, and the rest of the time did maneuvers in a yard or memorized what to do on a pre-trip inspection.“Honestly, we weren’t doing anything for most of the time,” Ms. Jeschke, 46, said. “You’re lucky if you got in the truck once a day.”Joy Skamser, 44, who also attended C.R. England’s training program in 2019 and lives in Southern Illinois, said she felt unprepared to drive, despite earning her commercial driver’s license at the end of the training.“They do not teach you how to drive a truck, they just teach you how to pass the test, and that’s very dangerous,” she said.Mr. England said the company gave high-quality training to its students that includes time in the classroom, on the driving range and on the road, with skill assessments throughout. Students who fail the assessments are given additional practice, he said.Once they have earned the license, drivers haul actual loads for their new employers. For typically four to 12 weeks, they are accompanied by a trainer. They earn a set weekly rate, varying by company but often $500 to $800, according to company websites. Mr. England said his company’s pay was $560 a week in 2019 and about $784 today.Trainers may be barely trained themselves, often needing only six months’ experience, and they are allowed to sleep in the back while the new driver is alone in the cab, according to industry experts and many companies.Ms. Jeschke said she finished her training without being able to back up, a crucial skill for truckers. She said she once spent a week at a truck stop, unpaid, waiting for another driver because she didn’t yet have the expertise to pick up a load on her own.Frustrated with the working conditions and the low pay, she and Ms. Skamser left C.R. England before their contracts were up and went to work for another trucking company, Werner Enterprises, where they say they were more fully trained.“I do not have words for how bad it was,” Ms. Jeschke said. “They do not care about drivers, only the loads.”Ms. Skamser said a debt collection agency was pursuing her for $6,000 that C.R. England says she owes for her training.It’s reasonable for companies to want to recoup the cost of training an individual, said Stewart J. Schwab, a professor at Cornell Law School. Still, he noted, like noncompete clauses, these contracts can significantly restrict worker mobility and hinder competition. In 2021, Mr. Schwab worked on a proposed law about restrictive employment agreements, such as the ones trucking companies use, with the Uniform Law Commission, a nonpartisan organization that drafts laws for states.The proposed legislation calls for the repayment of the training cost to be prorated based on when an employee leaves and says it should not exceed the actual cost of the training.Many major trucking companies don’t prorate their charges, meaning a driver who leaves on Day 1 after training would owe the same amount as one let go the day before fulfilling the contract. And companies are generally not made to account for how much they spend on the actual training. In 2019, a judge found that CRST’s charging $6,500 for its training “when in fact the cost was thousands of dollars lower” was a “deceptive practice.”That finding came as part of a class-action lawsuit that Mr. Orr eventually joined. The suit, which contended that drivers were being overcharged for their training and paid less than minimum wage for their hours worked, was settled for $12.5 million in 2021.Companies can come after drivers for money — or send them to debt collection — regardless of the reasons they leave or are let go. They also can try to prevent drivers from taking other jobs, as CRST did with Mr. Orr, lawyers for the drivers say. Such actions effectively deny those who want to leave a company the opportunity to do so and pay off their debt.Drivers who leave trucking companies before their contracts are up can be pursued by those companies — or by debt collectors — to pay thousands for training.Sean Rayford for The New York TimesA lawsuit filed in 2017 on behalf of drivers contends that eight companies, including CRST and C.R. England, are conspiring to block drivers under contract from changing jobs. Some companies refuse to release drivers’ records to prospective employers or send letters threatening litigation to competitors who don’t abide by a no-poaching agreement, the complaint says.Mr. England described the allegations as meritless but acknowledged in an interview that his company had “sued or threatened to sue some of our competitors for unlawfully interfering with those contractual relationships.”He said his company’s competitors had “unfairly taken advantage” of the training C.R. England provides to its drivers.Worried about being blackballed wherever he went, Mr. Orr took out a loan — the lowest interest rate he could find was 14 percent — and paid CRST. Through the class-action lawsuit, he was reimbursed for about two-thirds of what he had paid.“That training program is like a money mill to them,” he said. “They pretty much sell you a lot of dreams.”This article was produced by The Hechinger Report, a nonprofit, independent news organization focused on inequality and innovation in education. More

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Truck Drivers’ On-the-Job Training Can Be Costly if They Quit

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